text:
    A94A2395, A94A2718.
    SCOTT v. THE STATE (two cases).
    (455 SE2d 609)
   McMurray, Presiding Judge.

Defendant Frances Scott was charged with a single count of forgery in the first degree. While incarcerated pending trial, she was also indicted for possession of cocaine. She was tried before a jury and was found guilty of forgery in the first degree. After a bench trial, she was found guilty of possession of cocaine. In Case No. A94A2395, defendant appeals from the judgment of conviction entered by the trial court on the jury’s verdict finding her guilty of forgery in the first degree and in Case No. A94A2718, she appeals from the judgment of conviction for possession of cocaine. At the request of defendant, the two cases have been consolidated on appeal. Held:

Case No. A94A2395

1. In her first enumeration, defendant contends the evidence is insufficient to authorize her conviction for forgery in the first degree. She argues that “inconsistencies in the testimony of the state’s witnesses who claimed [defendant] was the forger ...” mandate that the weight of their testimony is insufficient as a matter of law.

At defendant’s jury trial, Michael Anthony Durden identified State’s Exhibit 1 as a check drawn on his former account at the “Bottlers Credit Union.” This particular stolen check is dated January 30, 1993, is made out to Food Max in the amount of $125.54, and the name of the maker is signed as “Michael Michelle Durden.” Mr. Durden had closed this checking account in October 1992, and kept the unused checks “[i]n my drawer at my niece’s house.” He never gave anyone permission to use those checks, and “[Reported them stolen in January of [1993 . . . after receiving] mail saying I owed so many people. . . .” Emily Hemmick was a cashier “employed by Food Max on Highway 138, Stockbridge, Georgia, back in January of 1993[.]” At around 2:00 p.m. on January 30, 1993, Ms. Hemmick saw defendant “write out the amount and sign ...” the check that is State’s Exhibit 1 and then tender it to pay for groceries. Defendant left the store. Ten or fifteen minutes later, the manager asked Ms. Hemmick to step outside. There, Ms. Hemmick identified defendant as the “same person that the police had in custody. ...” Defendant had attempted to alter her appearance, in that “[s]he had pulled her hair back and slipped on ... a sweatshirt.” However, Ms. Hemmick recognized an unusual blue ring worn by defendant. John Lively, the store manager, recognized the name printed on the check defendant tried to use to pay for her order as the “same as one we had been returned by the bank and we verified that the account had been closed.” He asked defendant to discuss the check, but “she walked out the door [. . . and] disappeared out of sight.”

On appeal from a criminal conviction the evidence must be viewed in the light most favorable to the verdict. Johnson v. State, 211 Ga. App. 151, 152 (438 SE2d 657). “ ‘The jury determines the credibility of the witnesses and weight to be given their testimony. ... [In the case sub judice,] the evidence and all reasonable deductions are such as to enable a rational trier of fact to find the elements of the offense [of forgery in the first degree as charged] beyond a reasonable doubt, according to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).’ . . . Frost v. State, 204 Ga. App. 581, 582 (420 SE2d 81) (1992).” Mitchell v. State, 208 Ga. App. 473, 474 (430 SE2d 852).

2. Over defendant’s character objection, the trial court admitted into evidence two bench warrants issued for defendant’s “failure to appear” in this case. The trial court determined that these warrants were relevant evidence of flight as consciousness of guilt. This evidentiary ruling is defendant’s second enumeration. She argues that the rule permitting evidence of flight as an indicium of guilty knowledge “refers to the actual crime, not to a failure to appear in court at some later date.” We disagree.

“[T]here can be no set or specific time necessary to constitute flight[.]” Hamby v. State, 71 Ga. App. 817, 818 (2), 819 (32 SE2d 546). “[I]t is not necessary that the flight take place immediately. Code § 38-302 [now OCGA § 24-3-2] [.]” McKuhen v. State, 216 Ga. 172 (3) (115 SE2d 330). “Further, evidence that the defendant forfeited his appearance bond is admissible as tending to show flight. Jones v. State, 26 Ga. App. 635 (3) (107 SE 166); Strickland v. State, 137 Ga. App. 628 (1) (224 SE2d 809).” Johnson v. State, 148 Ga. App. 702 (1), 703 (252 SE2d 205).

3. In her third enumeration, defendant contends the trial court erred in granting the State’s request for a continuance of the presentencing hearing due to the absence of a State’s witness. She argues that the State “failed to make the statutory showing required by OCGA § 17-8-25 to establish a valid reason for a continuance.” This contention is without merit.

The provisions of OCGA § 17-10-2 (a) expressly authorize the trial court to “recess the trial for the purpose of taking the sentence to be imposed under advisement.” The provisions of OCGA § 17-8-25, relating to a continuance of the trial, are not applicable to the scheduling of the post-verdict non-jury sentencing hearing. Rather, the scheduling of this hearing rests within the sound discretion of the trial court. “ ‘Discretion in regulating and controlling the business of the court is necessarily confided to the judge. . . .’ Carr v. State, 76 Ga. 592 (2c); Code Ann. § 24-104 [now OCGA § 15-1-3].” Simpkins v. State, 149 Ga. App. 763, 768 (4), 769 (256 SE2d 63). In the case sub judice, the trial court recessed the sentencing hearing for two weeks because a fingerprint expert from the Georgia Bureau of Investigation was not present. This witness would testify ultimately that defendant was the same person previously convicted under a variety of aliases. We find no abuse of discretion in the refusal of the trial court to conduct the sentencing hearing immediately and without the assistance of this expert witness.

4. Lastly, defendant contends she was improperly sentenced as a recidivist because the trial court considered her “First Offender drug record. . . .” In this regard, the transcript of the sentencing hearing shows that the trial court admitted over defendant’s objection a certified copy of her 1980 guilty plea (under the name of Barbara Ann Jackson) to a two-count special presentment alleging joint possession of cocaine and marijuana with Douglas Adam Scott. The State argued below that such first offender evidence was admissible “in aggravation of punishment, whether . . . they’ve successfully completed it or not.” Also admitted, without objection, was a certified copy of her 1987 guilty plea to five felony counts of “FINANCIAL TRANSACTION CARD THEFT” and one misdemeanor count of giving a false name to a law enforcement officer. In the case sub judice, defendant was sentenced to “a full term of Ten (10) . . . (years) [.]”

“Evidence in aggravation is not limited to convictions, Devier v. State, 253 Ga. 604 (9) (323 SE2d 150) (1984), and reliable information tending to show a defendant’s general bad character is admissible in aggravation. Fair v. State, 245 Ga. 868, 873 (268 SE2d 316) (1980).” Williams v. State, 258 Ga. 281, 286 (7), 287 (368 SE2d 742). Nevertheless, “[a] prior first offender record may not be used to sentence a defendant as a recidivist for a later crime if the conditions of probation under the prior first offender treatment have been fulfilled and the defendant has been ‘discharged’ under OCGA § 42-8-62. Queen v. State, 182 Ga. App. 794, 796 (1) (357 SE2d 150).” Jones v. State of Ga., 212 Ga. App. 682, 683 (1), 684 (442 SE2d 880). If the State seeks sentencing under OCGA § 17-10-7 (a) for a second felony offense, the maximum sentence must be imposed. State v. Temple, 189 Ga. App. 284, 285 (1) (375 SE2d 300); Hammond v. State, 139 Ga. App. 820, 823 (3) (229 SE2d 685). It follows that evidence which is inadmissible to show that the defendant is a recidivist is superfluous when tendered as evidence in “aggravation” of a mandatory recidivist sentence. In the case sub judice, the trial court erred in admitting this prior guilty plea which had been resolved by placing defendant on probation as a first offender pursuant to the provisions of OCGA § 42-8-60 because the “prior prosecution ‘is not allowable by law’ as provided by OCGA § 42-8-65.” Queen v. State, 182 Ga. App. 794 (1), 795, supra. However, we find the error to be harmless in this instance. Treating the 1987 guilty plea to five felony counts of financial transaction card theft as a single conviction under OCGA § 17-10-7 (c), the record still supports the maximum sentence for forgery in the first degree imposed in compliance with OCGA § 17-10-7 (a).

Case No. A94A2718

5. In two related enumerations, defendant contends the trial court erred in failing to suppress a small scrap of plastic allegedly containing cocaine. This plastic was secreted in defendant’s vagina while she was a pretrial detainee at the Clayton County Jail.

The following material facts were adduced at defendant’s motion to suppress hearing: On February 28, 1993, Diane Montgomery, then a Lieutenant with the Clayton County Sheriff’s Department ordered a shakedown search based on “received information that . . . drugs [were] located in . . . Section 5 of C Pod,” at the Clayton County Jail in Lovejoy, Georgia. “Every female in that section got strip searched,” by female deputies in a private room with no windows and with the door closed. Visual body-cavity searches were conducted but the deputies “never touched the inmates [.]” When Deputy Charlotte Nelson “asked [defendant] to bend over [defendant] informed [Deputy Nelson] that she had a tampon inserted. ...” Deputy Nelson asked defendant “to remove it [. . . according to] standard procedure.” Defendant “said she was trying but it was too tight to pull out.” To Deputy Nelson it appeared “as if [defendant] wasn’t really trying to take it out.” Defendant was allowed to get dressed and was taken to another area where she remained detained. Meanwhile, cocaine had been found in C Pod where defendant was housed, “behind the television . . .” and also concealed on the person of another inmate. Lieutenant Montgomery instructed that defendant be “taken to the infirmary for [a second strip search].” When informed that a second strip search would be done and that it was necessary for her to remove the tampon, defendant became reluctant and did not want to cooperate. She was detained at the infirmary, dressed but “not restrained[,] for a number of hours.” Lieutenant Montgomery decided to seek a warrant for a body-cavity search of defendant. Around 5:30 a.m. on March 1, 1993, defendant was placed, still dressed in jail attire, in a restraining chair, i.e., her ankles and wrists were cuffed. Lieutenant Montgomery explained “the only reason we put her in there is because I had no spare deputies to sit right there with her because it takes all we have in order to serve breakfast.” At 7:00 a.m., March 1, 1993, Lieutenant Montgomery applied for and obtained a warrant to conduct a search of defendant’s person.

Around 9:30 a.m., Deputy Jennie L. Massengale transported defendant to the Southern Regional Hospital. There, after further delay, the physician on duty spoke with defendant and then informed Deputy Massengale that “he would not do the . . . exam on [defendant] without her consent unless [Deputy Massengale] specifically told him that he had to do the search.” Defendant resisted because the search warrant did not specify “a cavity search.” At that point, Deputy Massengale explained to defendant: “[E]ither you can take the bag out yourself or we’re just gonna go back to the Jail. [There, you] may have to stay in the infirmary because if there’s some foreign object in there [, then] for security reasons or medical reasons, they may have to watch you, I don’t know. Actually, I’m tired of messing with you, you know, we’ve been here for several hours, you can either take it out or you don’t, but we’re leaving.” At that point, defendant, now clad in a hospital gown, produced from under a sheet across her lap what “appeared to be a green or black colored piece of torn plastic. . . .” According to defendant, “I told [Deputy Massengale] that I didn’t think I had to do it and so I wasn’t gonna do it. ... I sat there for a while and she informed me that I had to do, that I had to have that cavity search, because the search warrant was issued and so I just gave her the plastic paper to end all this.” The plastic was sent to the State Crime Laboratory where the “RESIDUE [TESTED] POSITIVE FOR COCAINE, SCHEDULE II.”

Defendant moved to suppress the plastic because “the means employed to search and seize were unreasonable.” This enumeration is controlled adversely to her contention by the decision of the Supreme Court of the United States in Bell v. Wolfish, 441 U. S. 520 (99 SC 1861, 60 LE2d 447). Without underestimating the degree to which strip searches and body-cavity inspections invade personal privacy, that Court nevertheless held that “visual body-cavity inspections [of pretrial detainees] can ... be conducted on less than probable cause [so long as the searches are conducted in a reasonable manner].” Bell v. Wolfish, 441 U. S. 520, 560 (III, D), supra. In the case sub judice, there is no evidence of violence, abuse, torture or threats. The actions of jail officials in obtaining a warrant and ultimately allowing defendant herself to produce the suspected contraband were entirely reasonable. Compare McCullough v. State, 177 Ga. App. 741, 742 (1) (341 SE2d 241). “Nor can it be said, in the absence of coercion, that such evidence was inadmissible as violative of the due process clause of the 14th Amendment of the Constitution of the United States. [Compare] Rochin v. California, 342 U. S. 165 (72 [SC] 205, 96 [LE] 183), and citations.” Jones v. State, 90 Ga. App. 761, 762 (1) (84 SE2d 124).

6. Defendant’s additional contention is that the evidence should have been excluded because she was “compelled against her will. . .” to remove the piece of plastic containing cocaine residue. She argues that evidence she gave incriminating herself should have been excluded by operation of OCGA § 24-9-20 and Article I, Section I, Paragraph XVI of the 1983 Georgia Constitution.

“It has long been held that evidence taken from an accused is admissible in Georgia where not compelled by illegal arrest. Compare Evans v. State, 106 Ga. 519 (32 SE 659), where the evidence was not admissible where compelled during an illegal arrest; [cit.]. . . .” Creamer v. State, 229 Ga. 511, 517 (192 SE2d 350). In the case sub judice, there is no contention that defendant’s detention was not lawful. The fact that she herself produced the evidence in acquiescence to the search warrant for her person does not render that evidence inadmissible. Rather, “her action . . . was voluntary and not the result of coercion so as to make the introduction ... in evidence inadmissible on the ground that it violated the [Georgia] constitutional inhibition against self-incrimination, as there was no explicit threat or show of force against the defendant. Grant v. State, 88 Ga. App. 745 (77 SE2d 748) [(physical precedent)], and citations.” Jones v. State, 90 Ga. App. 761, 762 (1), supra. This enumeration is without merit.

7. Defendant challenges the sufficiency of the evidence to authorize her conviction for possession of cocaine.

“ ‘Regardless of the amount, however minute, if it is enough for the officers to recover, as small as it may be, and capable of being identified by expert chemical analysis, such testimony would be sufficient when considered with other evidence as to possession.’ ” Rogers v. State, 155 Ga. App. 685, 687 (4) (272 SE2d 549). In the case sub judice, given the exclusive nature of defendant’s possession, a rational trier of fact could reasonably have found her guilty, beyond a reasonable doubt, of possession of cocaine as alleged in the indictment. See Green v. State, 260 Ga. 625 (1) (398 SE2d 360).

8. The trial court sentenced defendant to “a full term of Thirty (30) . . . years,” pursuant to “OCGA § 17-10-7 (b).” Defendant contends this sentence actually is imposed under OCGA § 16-13-30 (e) and is not authorized, arguing that her prior drug charges should not be considered. However, there was evidence of two prior episodes of felony-grade financial transaction card theft as well as defendant’s most recent felony conviction for forgery in the first degree. Even excluding the prior felony drug possession charges on the ground that they were treated as a first offense within the purview of OCGA § 42-8-60 (a), nevertheless, “there are . . . three [separate] prior felonies which cannot be considered to have been ‘consolidated for trial’ under OCGA § 17-10-7 (c).” Smith v. State, 193 Ga. App. 208, 211 (6) (387 SE2d 419). Thus, any error in considering defendant’s prior drug possession offenses did not infect the maximum sentence without parole imposed under OCGA § 17-10-7 (b).

Decided March 16, 1995.

James B. Sullivan, for appellant.

Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellee.

9. Defendant’s remaining two enumerations have been considered and are found to be without merit. Any error committed by the trial court in admitting a certified copy of a third conviction for financial transaction card theft in the name Letitia Rae Jackson, over defendant’s objection that this document had not been authenticated by Willie G. Smith, Manager of the “Automated Fingerprint Identification Section” of the Georgia Bureau of Investigation, is rendered moot by our holding in Division 8, affirming the sentence.

Judgments affirmed.

Pope, P. J., and Smith, J., concur specially.

Smith, Judge,

concurring specially.

While I concur in the result, I write to clarify the state of the law with regard to Division 3 of the majority opinion. This court previously has applied OCGA § 17-8-25 and its companion sections governing continuances to judicial proceedings other than trials. See, e.g., Hayes v. State, 214 Ga. App. 893, 894 (449 SE2d 360) (1994) (OCGA § 17-8-22, sentencing hearing); Riggins v. State, 206 Ga. App. 239, 241 (2) (424 SE2d 879) (1992) (OCGA § 17-8-25, probation revocation hearing).

Nevertheless, the trial court did not abuse its discretion in granting a continuance. “ ‘It was pointed out in Hobbs v. State, 8 Ga. App. 53, 54 (68 SE 515) that continuances in criminal cases are not governed by the strict rules of civil cases and that the motion should be granted “whenever the principles of justice appear to demand a postponement.” . . . [Cits.]’ ” Gallimore v. State, 166 Ga. App. 601 (305 SE2d 164) (1983). We have previously held that the absence of a material witness for the state is a reasonable showing in support of a continuance within the meaning of OCGA § 17-8-21, and that the trial court did not abuse its discretion in granting the state’s motion. Minicucci v. State, 214 Ga. App. 468, 469 (2) (448 SE2d 34) (1994). I therefore concur in the result in Division 3 of the majority opinion.

I am authorized to state that Presiding Judge Pope joins in this special concurrence.

       The special concurrence mistakenly cites Hayes v. State, 214 Ga. App. 893 (449 SE2d 360) as authority for the dubious proposition that the eight-point showing of OCGA § 17-8-25 must be made by the State in an application for a continuance of the post-verdict non-jury presentencing hearing. Nevertheless, the panel members are in agreement that the grant of such a continuance at the behest of the State is a matter entrusted to the sound discretion of the trial court.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A94A2495.
    A94A2496.
    ENVIRONMENTAL WASTE REDUCTIONS, INC. v. LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC. REHEIS v. LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.
    (455 SE2d 393)
   Johnson, Judge.

Environmental Waste Reductions, Inc. (“EWR”) applied to the Environmental Protection Division (“EPD”) of the Georgia DepartIment of Natural Resources (“DNR”) for a permit to build and operate a biomedical waste disposal facility in Quitman County. Finding that EWR’s application met the requirements of Georgia’s Comprehensive Solid Waste Management Act (“the Act”) and the administrative regulations promulgated thereunder, the EPD, of which appellant Reheis is director, issued the permit. See OCGA § 12-8-20 et seq. Several residents of Quitman County and the Legal Environmental Assistance Foundation, Inc. (“LEAF”), challenged the issuance of the permit and appealed to DNR, arguing that EWR failed to demonstrate a need for the facility and that it failed to show that the jurisdictions that would be using the facility complied with state-wide plans to reduce waste. See OCGA § 12-8-24 (b) (1), (g). After a hearing, the administrative law judge affirmed the issuance of the permit, finding that there was a need for the facility and that there was no showing that planning requirements had not been met. LEAF appealed the decision to superior court. The superior court reversed the administrative decision, finding that EWR failed to comply with the need and planning requirements of the Act. We granted the applications of EWR and Reheis for discretionary review of the superior court’s decision. EWR appeals in Case No. A94A2495; Reheis appeals in Case No. A94A2496.

In Case No. A94A2495, EWR argues the superior court erred in: (1) reversing the ALJ’s decision because there was no error of law or abuse of discretion; (2) failing to apply the proper standard of review to the ALJ’s decision; (3) ruling that the ALJ should have considered a Bibb County facility’s capacity in determining whether the need requirement of OCGA § 12-8-24 (b) (1) was met; (4) ruling that a Bibb County ordinance restricting the importation of waste from other counties was preempted by OCGA § 12-8-20 et seq.; (5) reversing the ALJ’s finding that the planning requirements of OCGA § 12-8-24 (g) are merely threshold requirements for issuance of a permit; (6) imposing conditions on the EWR permit to accept waste only from jurisdictions that have complied with the planning requirements; (7) reversing the ALJ’s decision rather than remanding the case or modifying the permit; and (8) applying the Act so as to interfere with the movement of solid waste in violation of the Commerce Clause of the Constitution of the United States.

Case No. A94A2496 presents nearly identical issues. In this case, Reheis argues the superior court erred in: (1) disregarding a Bibb County ordinance that placed limitations on the importation of waste from other counties; (2) reversing the issuance of the permit based on a finding that the planning requirements were not threshold requirements; (3) reversing the issuance of the permit rather than imposing limitations on the permit; and (4) disregarding the “any evidence” standard of reviewing the ALJ’s decision. Inasmuch as the issues in these appeals overlap, the cases will be analyzed together.

We are cognizant of a ruling from a federal court which may affect our consideration of these appeals. In addition to its action in superior court, EWR filed an action against Reheis in the United States District Court for the Northern District of Georgia seeking declaratory and injunctive relief asserting that the need and planning requirements of the Act unconstitutionally restrict the interstate movement of waste in violation of the Commerce Clause. Environmental Waste Reductions v. Reheis, Civil Action No. 1:94-CV-1498-FMH, decided October 28, 1994. The federal court agreed, finding that the need provision set forth in OCGA § 12-8-24 (b) (1) is unconstitutional because it violates the Commerce Clause. The court also found that the planning requirements in OCGA §§ 12-8-24 (g) and 12-8-31.1 (e) violate the Commerce Clause to the extent they require the applicant to verify that out-of-state jurisdictions are involved in, and have a strategy for, meeting state-wide planning requirements and waste reduction goals. The federal court permanently enjoined Reheis from enforcing the need and planning requirements against EWR. The order was not appealed and is now final.

1. A ruling by a federal trial court is persuasive, not binding, on this court. See Delaney v. Lakeside Villa, Ltd., 210 Ga. App. 430, 431 (3) (440 SE2d 668) (1993); Security Mgmt. Co. v. King, 132 Ga. App. 618, 619 (1) (b) (208 SE2d 576) (1974). Here, however, the federal court decision directly affects the parties to the cases before us. The federal order specifically prohibits Reheis from denying EWR a permit based on its alleged failure to satisfy the need and planning requirements of the Act. While the district court’s determination that the statute is unconstitutional is not binding on this court, it is binding on Reheis. See generally OCGA § 9-12-40. Thus, to the extent the district court’s decision compels Reheis to issue the permit to EWR, the appeals regarding that issue are rendered moot. The appeals are not entirely moot, however, because Reheis’ dilemma, caused by opposing directives, one from the superior court and the other from the federal court, could potentially be resolved here. Compare Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117 (446 SE2d 794) (1994). Moreover, the parties and the issues in the cases are not identical, rendering traditional principles of estoppel by judgment and res judicata inapplicable. See Miller v. Charles, 211 Ga. App. 386, 387 (439 SE2d 88) (1993). Accordingly, we must address the merits of the appeals.

2. EWR and Reheis correctly contend that the superior court erred in reversing the ALJ’s determination that EWR demonstrated a need for the facility. Before being approved for a permit, EWR was required to demonstrate to EPD’s director “that a need exists for the facility ... by showing that there is not presently in existence within the state sufficient disposal facilities for biomedical waste being generated or expected to be generated within the state.” OCGA § 12-8-24 (b) (1). In a hearing lasting five days, the ALJ heard testimony from numerous expert witnesses and was presented with hundreds of pages of documents regarding the amounts of biomedical waste being generated each day by Georgia’s hospitals, nursing homes and medical laboratories. He was also presented with an abundance of evidence regarding the state’s present capacity to dispose of biomedical waste based on the capacity of existing commercial incinerators, landfills and hospitals. In a lengthy and well-reasoned decision, the ALJ found that Georgia’s need for biomedical waste disposal exceeded its capacity and, applying the agency’s regulations and the statutory standards, affirmed the director’s issuance of the permit because, in his opinion, a need for EWR’s facility had been demonstrated. The question of whether the need for the facility exists is one of fact. In reviewing the decision of an administrative agency, the court is not permitted to substitute its judgment for that of the agency regarding the weight of the evidence. OCGA § 50-13-19 (h); Sawyer v. Reheis, 213 Ga. App. 727, 728 (1) (445 SE2d 837) (1994). Review of evidentiary matters by the superior court is limited to a determination of whether the facts found by the ALJ are supported by any evidence. Id. at 729; see Dept. of Transp. v. Rushing, 143 Ga. App. 235, 238 (2) (237 SE2d 722) (1977). The record amply supports the ALJ’s finding that the need for the facility was shown. Chatham County Hosp. Auth. &c. v. St. Joseph’s Hosp., 178 Ga. App. 628, 629 (344 SE2d 463) (1986). Therefore, the superior court erred in reversing the ALJ’s finding on this issue.

LEAF argues that the ALJ committed a legal error by failing to consider the disposal capacity of the Medical Center of Central Georgia (“MCCG”), located in Bibb County, in determining whether a need for EWR’s proposed facility exists. The ALJ stated at the hearing that Reheis correctly excluded MCCG’s capacity in determining need because the Bibb County Code does not allow waste generated in other counties to be disposed of in Bibb without a special permit. Because out-of-county waste generators are not assured use of the Bibb County facility, the ALJ’s exclusion of the facility as not readily available is reasonable. LEAF argues that the facility should have been considered because Bibb County’s ordinance conflicts with and is preempted by the Act. The preemption argument was not raised or ruled upon in the administrative proceeding and therefore the superior court’s ruling thereon need not be reviewed on appeal. See Ga. Pub. Svc. Comm. v. Southern Bell, 254 Ga. 244, 247 (327 SE2d 726) (1985). In any event, the Act specifically authorizes local governments to impose further restrictions on the handling of waste provided they do not conflict with the Act. OCGA § 12-8-30.9 (1). We do not believe that Bibb’s requirement that those seeking to import waste first receive a permit conflicts with the Act. “The interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference. [Cits.]” Hosp. Auth. of Gwinnett County v. State Health &c. Agency, 211 Ga. App. 407, 408 (2) (438 SE2d 912) (1993); Kelly v. Lloyd’s of London, 255 Ga. 291, 293 (336 SE2d 772) (1985). We find the agency’s interpretation of the statute regarding need to be reasonable and legally correct. The superior court erred in failing to give the agency’s interpretation the deference to which it is entitled.

3. The agency’s determination regarding the planning requirements should not have been disturbed. The statute at issue provides: “Prior to the issuance of any permit for a solid waste handling facility or the granting of any major modification of an existing solid waste handling permit, the director shall require written verification to be furnished by the applicant that. . . the host jurisdiction and all jurisdictions generating solid waste destined for the applicants’ facility can demonstrate that they are part of an approved solid waste plan developed in accordance with standards promulgated pursuant to this part and are actively involved in and have a strategy for meeting the state-wide goal of waste reduction by July 1, 1996.” (Emphasis supplied.) OCGA § 12-8-24 (g). The director of the EPD and the ALJ interpreted this provision as requiring documentation of compliance with state-wide plans for waste reduction from participating jurisdictions before a permit may be issued. Contrary to LEAF’S argument, there is nothing in the statute suggesting that the documentation requirement is continuing or that any permit issued would be conditioned upon a continuing obligation to submit planning verification. The agency’s interpretation appears to be consistent with the plain meaning of the statute. Because the director is charged with primary responsibility for the state’s solid waste management program, his interpretation of the Act, like the ALJ’s, is entitled to great weight and deference. See Butts County v. Pine Ridge Recycling, 213 Ga. App. 510, 512 (1) (445 SE2d 294) (1994); Hosp. Auth. of Gwinnett County, supra. The superior court failed to give proper weight and deference to the director’s and the ALJ’s interpretation of the planning requirements. We find that the record supports the agency’s final decision. See Sawyer, supra at 729 (1); see Colquitt EMC v. City of Moultrie, 197 Ga. App. 794, 797 (399 SE2d 497) (1990). Therefore, the judgment of the superior court is reversed and the decision of- the ALJ affirming the issuance of the permit is reinstated.

Decided March 16, 1995.

King & Spalding, Patricia T. Barmeyer, Mary E. Huckabee, for Environmental Waste Reductions.

Michael J. Bowers, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Alan Gantzhorn, Brenda H. Cole, Assistant Attorneys General, for Reheis.

Andrew J. Smith, David Ludder, for Legal Environmental Assistance Foundation.

Judgment reversed.

Andrews, J., concurs. Beasley, C. J., concurs in judgment only.


author: Andrews, Judge.

text:
    A94A2655.
    HOWARD v. HAMMOND.
    (455 SE2d 390)
   Andrews, Judge.

Howard appeals from the judgment entered on the jury’s verdict in favor of Hammond, plaintiff below, in their dispute over the dissolution of a partnership.

Viewed with all inferences in favor of the jury’s verdict, the evidence was that Howard ran the Lambert Insurance Agency of Cleveland. She had an agency contract with Allstate Insurance Company which allowed her and any employees of her agency to sell Allstate products. Allstate wanted to expand into Dahlonega and approached Howard about opening an office there and giving her the agency contract to write Allstate insurance. She had met Hammond socially before and talked to him about working for her at the Lambert Insurance Agency of Dahlonega. Hammond was licensed to sell all types of insurance and had previously worked for Georgia Farm Bureau Insurance before starting his own insurance business in his home.

Around May 1990, Howard and Hammond reached an oral employment agreement whereby he would be paid $1,500 a month as salary, she would channel him all of . her life and health insurance prospects from her Cleveland agency and he would keep all life and health insurance commissions. She would in turn receive all of the commissions for property and casualty insurance, i.e., the Allstate business.

On June 21, 1990, an Agency Agreement was entered into by Allstate Insurance Company and “Lambert Insurance Agency, County of Lumpkin [Dahlonega] . . . (hereinafter referred to as ‘the Agent’).” The agreement was signed for Lambert Insurance by Howard “Agency Owner/Principal.” In Article IX, Paragraph B (1), it provided that it would be terminated on the effective date “of any sale, transfer, or merger of the Agent’s business or interest therein unless the company consents in writing to the assignment of the Agreement or enters into a new Agency Agreement.”

From June to August, Hammond, who was also a carpenter, worked renovating the Dahlonega office. The office had its grand opening in September 1990. In October, Howard was unable to pay Hammond’s salary. She wrote him a check but it was returned by the bank. As a result, Hammond went to see Howard and, during the discussions, the idea of his investing in or buying half of the Dahlonega agency was discussed. Fowler, Howard’s attorney, met with the two of them a number of times and a contract was prepared by him. It established a 50/50 partnership. For his half interest, Hammond mortgaged his home and gave Howard a check for $25,000. The agreement was signed on November 9, 1990, retroactive to October 1, 1990.

The agreement provided, in part, that whereas “Howard is the sole owner of a general insurance agency known as Lambert Insurance of Dahlonega . . . and . . . has the Agency Agreement with Allstate Insurance Company; and . . . Hammond is a licensed insurance agent . . . licensed in all lines of insurance sales; and . . . Hammond desires to purchase a one-half (Vis) interest in said insurance agency owned by Howard known as Lambert Insurance of Dahlonega, and Howard is desirous of selling a one-half (V2) interest in said insurance agency to Hammond ...” that the sale would be consummated and a partnership formed to carry out the business in Dahlonega. In addition to initial capital contributions, the partners would share expenses and profits/losses 50/50.

Paragraph 27 provided that “[ejither Partner may withdraw from the partnership upon giving written notice to the other Partner at least ninety (90) days prior to his or her intentions to withdraw. The withdrawal shall become effective upon termination of the ninety (90) day notice. On withdrawal of a Partner, that Partner’s share shall be determined by evaluating the worth of the partnership, and the withdrawing Partner shall be paid (a) a cash payment... for the value of . . . unrepaid capital contributions, if any, plus ten per cent (10%) interest thereon, (b) a cash payment ... for his interest in the current year’s profits, if any, and (c) an annual cash payment . . . after the close of each fiscal year for the Partner’s share of receipts from business obtained prior to . . . withdrawal but completed after withdrawal.”

Howard had the option, at the end of 1993, to sell her half to Hammond and he agreed to give her right of first refusal if he decided to sell his interest.

On November 16, 1990, Owen, Howard’s accountant, sent her a letter regarding the Dahlonega agency and stated that, on the books, “we will show your investment equal to [Hammond’s] which in effect will off-set to the Furniture, Fixtures, Sign and other Start-up Cost you have put in and the balance to the value of an Asset which is the All State Ins. Contract.”

Prior to its termination, 90 percent of the business done by the Dahlonega agency was Allstate property and casualty insurance.

On March 14, 1991, Howard sent Hammond a certified letter stating that “[t]his is to notify you that under Paragraph 27 of our Agreement of November 9, 1990, I am providing you with the required notice of my intent to dissolve the partnership. The effective date of the termination is June 12, 1991.”

Hammond did not immediately respond, believing that, pursuant to the partnership agreement, he now had the right to take over the partnership by complying with the provisions of Paragraph 27 and tendering her the payment provided for therein. He continued to go into the office and conduct business until Howard had the locks changed on the office and the post office box. Without conceding the accuracy of the amount, Hammond’s attorney sent a tender of the amount alleged due to Howard pursuant to the dissolution and “conditioned upon Howard immediately turning over all partnership assets including the Allstate Insurance Contract.”

Howard sent all the customers of the agency letters advising that the agency was now “Lumpkin County Insurance Services (local ALLSTATE agent)” and that Hammond was no longer affiliated with the agency nor was he an authorized Allstate agent.

Hammond filed suit, alleging breach of the agreement, wrongful dissolution, fraud, and claiming punitive damages and attorney fees. Howard counterclaimed, contending that he had breached the contract and seeking her attorney fees. The jury awarded Hammond $20,000 for breach of contract, $45,000 for fraud, $10,000 for wrongful dissolution, $5,000 punitive damages, and attorney fees.

1. In her first and second enumerations of error, Howard contends the court erred in not granting her motion for directed verdict, j.n.o.v. or new trial on the issue of fraud. They are addressed together.

“ ‘ “(O)n appeal, we must construe the evidence most strongly to support the jury verdict and the judgment” (cit.); likewise, in considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. (Cit.) The standard for review of a directed verdict and a judgment n.o.v. are the same: “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” (Cit.)’ Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991); Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). Our review is the ‘any evidence’ standard. Mattox, supra. It is important to remember that this court does not consider the weight of the evidence. Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 738 (2) (320 SE2d 863) (1984).” J. B. Hunt Transp. v. Bentley, 207 Ga. App. 250, 254 (2) (427 SE2d 499) (1993).

So viewing the evidence here, there was evidence to support Hammond’s contention that, at the time of signing the partnership agreement, Howard had no intention of including the Allstate contract in the assets of the partnership being formed, despite language in the agreement and other documents indicating it was the primary asset of the agency.

“While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, [the promisor] knows that the future event will not take place.” Hayes v. Hallmark Apts., 232 Ga. 307, 308 (207 SE2d 197) (1974). “A promise made without a present intent to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud.” Middlebrooks v. Lonas, 246 Ga. 720, 721 (272 SE2d 687) (1980); Miner v. Harrison, 205 Ga. App. 523, 525 (2) (422 SE2d 899) (1992); Rogers v. deMonteguin, 193 Ga. App. 480, 481 (1) (388 SE2d 10) (1989).

Therefore, the trial court did not err in denying Howard’s motions for directed verdict, j.n.o.v., and new trial. Miner, supra.

2. The third enumeration is that the court erred in denying the motion for j.n.o.v. on the ground that entering judgment on both the breach of contract and wrongful dissolution claims was an impermissible double recovery.

Here, in addition to contending that Howard breached the partnership agreement by failing to comply with the withdrawal provisions in Paragraph 27, Hammond further contended that Howard locked him out of the office and precluded him from servicing clients for whom he had written insurance.

This issue is controlled adversely to Howard by Wilensky v. Blalock, 262 Ga. 95, 98 (3) (414 SE2d 1) (1992). As held there, “ ‘(L)aws in existence at the time a contract is executed are part of that contract. (Cit.)’ Busbee v. American Assn. of Univ. Professors, 235 Ga. 752 (2) (221 SE2d 437) (1975). Already in existence at the time the partnership in question here was created was the provision in OCGA § 23-2-58 that partners owe a duty to act in the ‘utmost good faith’ with regard to each other. Therefore, it follows, . . . , that the partnership agreement here included, as a matter of law, an agreement that [the partners] would act in utmost good faith toward one another. . . . [0]ne partner’s exercise of the right to terminate the partnership, if done in bad faith for the purpose of appropriating to that partner’s benefit the prosperity of the partnership, would be a violation of the partnership agreement and would constitute wrongful dissolution of the partnership. . . . While the contract here contained a right for [Howard] to terminate it at will, it did not expressly give [her] the right, in the course of that termination, to keep for [herself] all the assets and business opportunities of the partnership. A review of the testimony at trial would authorize the jury to believe that [Howard] physically excluded [Hammond] from the partnership’s place of business and kept for [herself] all the partnership’s material assets and continuing income . . . , that [Howard’s] conduct was a breach of the implied duty of good faith in the . . . partnership agreement, and that the breach of that agreement caused [Hammond] damages.” Wilensky, supra at 98-99.

Decided March 16, 1995.

Smith, Gilliam & Williams, M. Tyler Smith, for appellant.

Bonnie C. Oliver, for appellee.

Therefore, there was no error in entering judgment on both the breach of contract and wrongful dissolution claims.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


author: Ruffin, Judge. Blackburn, Judge,

text:
    A94A2705.
    STATE FARM FIRE & CASUALTY COMPANY v. BAJALIA.
    (456 SE2d 77)
   Ruffin, Judge.

The stipulated facts in this subrogation action show that Freddie Bajalia rented a home from Sarah Canup. In violation of OCGA § 44-7-33, Canup failed to present Bajalia with a list of damages to the home prior to the time he moved in, tendered his $300 security deposit to her, or at any time thereafter. While Bajalia was cooking in the home, he negligently caused a fire which resulted in damages of $3,197.11. At the time of the fire, State Farm Fire & Casualty Company (“State Farm”) provided fire insurance to Canup and covered the loss under the policy. After the lease expired, Canup failed to provide Bajalia with a second list of damages as is required by OCGA §§ 44-7-33 and 44-7-34 and did not return his security deposit. State Farm filed the instant subrogation action to recover the amount of the loss, with the stipulation that State Farm had no greater rights against Bajalia than did Canup.

Following a bench trial, the court held that “ [Canup’s] failure to provide the lists of existing defects and damages called for under OCGA § 44-7-33 works a forfeiture pursuant to OCGA § 44-7-35 (b) of [State Farm’s] right to recover as subrogee for damages to the premises. . . .” The trial court accordingly denied State Farm’s claim and entered judgment in favor of Bajalia.

State Farm asserts that the trial court erred in its interpretation of OCGA § 44-7-35 (b), insofar as the court ruled that Code section applied to the instant case. OCGA § 44-7-35 (b) provides that “[t]he failure of a landlord to provide each of the written statements within the time periods specified in Code Sections OCGA § 44-7-33 and 44-7-34 shall work as a forfeiture of all his rights to withhold any portion of the security deposit or to bring an action against the tenant for damages to the premises.” (Emphasis supplied.) State Farm argues there is no indication that the legislature intended for this statute to cover catastrophic tort damages to the premises which are the subject of this action. In support of its argument, State Farm relies on this court’s decision in Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 (274 SE2d 620) (1980). In Kimber, we found that even though the landlord failed to provide its tenants with the notices required by OCGA §§ 44-7-33 and 44-7-34 and failed to return the security deposit, it was still not precluded by OCGA § 44-7-35 (b) from bringing an action against the tenants for unpaid rent. Id. at 403. State Farm argues that since the landlord in Kimber was not precluded from bringing an action for rent, its claim for catastrophic damages should not have been forfeited in the instant case. We disagree.

In Kimber, we made the very distinction between unpaid rent and damages to premises that State Farm is ignoring in the instant case. There we held that “[w]hile [OCGA § 44-7-35 (b)] clearly bars a landlord from . . . bringing suit against the tenant for damages to the premises if the landlord does not provide the specified written statements, it does not bar the landlord from bringing an action to recover unpaid rent. ...” Id. Accordingly, since it is uncontroverted that Canup failed to provide Bajalia with the specified written notices, State Farm was barred from bringing the instant action against Bajalia for damages to the premises. Although State Farm argues there should be an exception to OCGA § 44-7-35 (b) for catastrophic damages not anticipated under the lease, it has provided no authority to support this interpretation, and this court will not find such an exception where the legislature has clearly not provided one.

Finally, we reject State Farm’s contention that if such an exception is not found, then landlords will be forced to charge security deposits equalling the value of the rented premises in order to protect their interests. Such a. contention ignores the fact that if landlords simply follow the requirements set forth in the statutes above, OCGA § 44-7-35 (b) will not bar them from bringing an action for damages.

Decided March 16, 1995.

Young, Clyatt, Thagard & Hoffman, Robert L. Lambert, Jr., for appellant.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, C. George Newbern, for appellee.

Judgment affirmed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur with the majority in the judgment and in its analysis. I write separately to express my concern that the factual situation of the present case was not contemplated by the legislature in the enactment and wording of OCGA § 44-7-35 (b). The statute purports to govern the rights and duties of a landlord with respect to any security deposit obtained from tenants. However, damages resulting from a tenant’s negligently caused fire, are damages caused by the tenant. As the damages in the present case were undeniably caused by the tenant, I believe that the tenant should be held responsible. However, I must agree with the majority, that the statute as presently worded precludes the landlord from bringing any action against the tenant for damages to the premises if the landlord has not complied with the written statements specified in OCGA §§ 44-7-33 and 44-7-34.

Furthermore, as it is not apparent from the majority that the exception contained in OCGA § 44-7-36 is not applicable to the present case, I write separately to note that the parties stipulated that the landlord was not exempt pursuant to OCGA § 44-7-36 from the requirements of OCGA §§ 44-7-33 and 44-7-35.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A2828.
    THE STATE v. RENFROE.
    (455 SE2d 383)
   McMurray, Presiding Judge.

Defendant was charged via a four-count accusation with driving under the influence of alcohol, driving with a suspended license, operating a motor vehicle with no insurance, and no proof of insurance. He filed a written pretrial motion in limine to exclude and suppress “any and all evidence . . . including any evidence of the Defendant’s alleged refusal to take a State administered chemical test and the results of any field sobriety test. . . .” Defendant contended that the arresting officer “did not inform the Defendant that as an out-of-state (Florida) license holder only his privilege to drive in the State of Georgia could be suspended. Consequently, . . . informing the Defendant that his license may be suspended for ‘a minimum period of one year’ . . . [was] erroneous information which made it impossible for the Defendant to make an informed decision. . . .” (Emphasis in original.) He also filed a separate motion to exclude evidence for alleged constitutional violations pursuant to OCGA § 17-5-30, and various other motions. After a hearing on defendant’s motions, the trial court denied general and special demurrers and also denied a motion to dismiss on constitutional grounds but further held that the “implied consent warnings given to this particular Defendant were so confusing, inaccurate and misleading that the Defendant was deprived of his right to make an intelligent and informed decision as to whether or not he should submit to the State administered chemical test.” The arresting officer also failed to specify that defendant’s right to additional chemical tests included the right to tests of his “blood, breath or urine at his own expense.” Consequently, the trial court granted “Defendant’s Motion to Suppress evidence of his refusal to take the State administered chemical test. ...” The State pursued this direct appeal. Held:

The sole enumeration of error in the case sub judice is controlled by the recent whole court opinion in State v. Coleman, 216 Ga. App. 598 (455 SE2d 604) (1995). We find no error in the trial court’s ruling.

Judgment affirmed.

Pope, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I concur in the judgment of the majority affirming the trial court’s judgment. I write specially to point out two matters the majority fails to mention.

1. The appellee has moved this court to dismiss the State’s appeal on the ground that the ruling from which the State appeals is not one of those enumerated in OCGA § 5-7-1 entitling the State to bring an appeal. This motion is meritless. “[I]f a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the [SJtate.” State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984). This is true regardless of whether it is obtained unlawfully because it violates the Constitution or regulations of the State Department of Public Safety. Id. This evidence — i.e., Renfroe’s refusal to take the test — was unlawfully obtained.

2. In addition to the issue controlled by this court’s decision in State v. Coleman, 216 Ga. App. 598 (455 SE2d 604) (1995), the trial court based its ruling excluding this evidence upon the arresting offleer’s failure to inform Renfroe of his right to have an additional, independent chemical test by a person of his own choosing at his own expense. This issue provides another basis for affirming the trial court’s exclusion of the evidence, and it is controlled by this court’s recent decision in State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994).

Decided March 16, 1995.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellant.

William C. Head, for appellee.


author: Ruffin, Judge.

text:
    A94A1894.
    MOSS v. THE STATE.
    (455 SE2d 411)
   Ruffin, Judge.

William Moss was convicted by a jury of three counts of aggravated child molestation, two counts of aggravated sodomy, and one count of sodomy involving his three daughters who were aged eight, seven and six at the time they were molested. Moss was sentenced to ten years’ imprisonment and appeals following the denial of his motion for new trial.

1. Moss enumerates as error the trial court’s denial of his motion in limine to suppress the testimony of witnesses added to the State’s list on the eve of trial. He maintains there was insufficient time to prepare a defense to the testimony of the clinical social worker and counselor who interviewed the victims at Grady Hospital two-and-one-half weeks after the molestations occurred in August 1989, and the clinical social worker who counseled one of the children in October 1989, in Savannah.

The former OCGA § 17-7-110 provided that, on demand, the State must supply a defendant with “a list of witnesses on whose testimony the charge against him is founded.” The Code section further mandated that “[w]ithout the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state in his place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.” OCGA § 17-7-110.

The prosecutor explained that he discovered the identity and whereabouts of the witnesses on the Thursday immediately preceding the start of trial on Monday and promptly notified defense counsel. Moreover, unlike the situation in Allison v. State, 256 Ga. 851 (8) (353 SE2d 805) (1987), counsel had time to interview the witnesses between Thursday and the beginning of trial Monday. At trial, his thorough cross-examination of the witnesses demonstrated his preparation for evidence concerning the Child Abuse Accommodation Syndrome. We find no abuse of discretion in the trial court’s decision to admit the evidence and allow defense counsel time to interview the two out-of-town witnesses prior to their testimony. See Willis v. State, 202 Ga. App. 447, 448 (1) (414 SE2d 681) (1992).

2. Moss also contends the trial court erred by refusing to require production of the notes and records of the social workers who counseled the victims and testified at trial. He argues that these materials constitute the factual basis for these experts’ opinions and are, therefore, discoverable pursuant to the procedures of OCGA § 49-5-41.

OCGA § 49-5-40, as amended, provides that records maintained by a state or local agency in connection with reports of child abuse are confidential, and access to such records is prohibited except as provided in OCGA §§ 49-5-41 and 49-5-41.1. The record shows that the trial court examined the records of the Department of Family & Children Services subpoenaed by Moss and found they were unrelated to any issue in the case. Furthermore, this court has held that “OCGA § 17-7-211 [concerning the right of the defendant to written scientific reports] does not apply to the testimony of mental health therapists and psychologists, even if such testimony is based on written notes or reports.” Horne v. State, 192 Ga. App. 528, 531 (4) (a) (385 SE2d 704) (1989). Accordingly, the trial court did not err in denying the defense request for the notes and work product of the social workers who testified at trial concerning their contact with the Moss children.

3. Moss next enumerates as error the trial court’s failure specifically to accept the testimony of counselor Marie Simmons, who interviewed the victims at Grady Hospital two-and-one-half weeks after the molestations occurred, as an expert qualified in a specified field. The record shows, however, that the witness was examined by the prosecutor and defense counsel regarding her credentials and expertise in the area of clinical psychology and the Child Abuse Accommodation Syndrome after which the trial court directed the prosecutor to proceed. When the State questioned the court as to whether the tender was accepted, the court repeated, “You may proceed.” Defense counsel did not object to the court’s implicit acceptance of. the witness as an expert, and thus failed to preserve this enumeration for appellate review. Morris v. State, 212 Ga. App. 42, 44 (2) (441 SE2d 273) (1994).

4. We find no merit in Moss’s fourth enumeration that the trial court refused to strike a juror for cause who stated during voir dire that he found the charged offenses “repugnant” and was “not likely to give anybody the benefit of the doubt.” Moss claims he was prejudiced by having to use a peremptory strike to remove this juror from the panel. The record shows the court probed this juror’s statement, reminding him that “[U]nder our system [Moss] is entitled to all of the benefit of the doubt, [because] he is presumed innocent.” The juror replied that he understood and, to the court’s query, “You would require the State to prove him guilty, wouldn’t you?” the juror answered “I would.”

We find no abuse of discretion in the court’s refusal to strike this juror for cause. It is not clear that this juror held opinions “ ‘so fixed and definite’ ” as to render him “ ‘unable to set [them] aside and decide the case based upon the evidence or the court’s charge upon the evidence.’ [Cits.]” Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993).

5. Finally, Moss enumerates the denial of his motion for new trial on the ground of ineffective assistance of trial counsel.

“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations, punctuation and emphasis omitted.) Johnson v. State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994).

Moss’s allegations of ineffective counsel are without merit. First, counsel’s failures to interpose objections or move for a mistrial were explained at the evidentiary hearing as tactical decisions based upon counsel’s reading of jurors’ attitudes and prior legal research or strategic considerations involving cross-examination of certain witnesses. More specifically, counsel’s failure to object and move for a mistrial when clinical social worker Shirley Hamilton testified she “had no suspicions these children weren’t telling the truth” or when mental health therapist Marie Simmons stated that on the one occasion she saw the Moss children at Grady Hospital, she “felt like the kids were telling the truth” does not warrant a new trial on ineffective assistance grounds. Ms. Simmons explained that “the children . . . could talk about what had occurred to them, . . . they used language that was appropriate to children,” and “their affect matched what they were telling me. So it was difficult for them to tell, and it was obviously distressing to them.”

Even assuming the witnesses’ challenged testimony was objectionable, “it cannot be said . . . that but for [counsel’s alleged] error, the verdict would have been different. This is particularly so in view of the fact that the record shows the [children’s] statements were reasonably consistent, thus supporting the verdict found by the jury with or without [the] social worker’s [or therapist’s] opinion[s].” (Citations and punctuation omitted.) Williamson v. State, 207 Ga. App. 565, 569 (2) (g) (428 SE2d 628) (1993); see also Knight v. State, 207 Ga. App. 846 (1) (429 SE2d 326) (1993). Moreover, the experts’ statements were “not a significant addition to [their] main testimony, so as to displace the jury’s minds on the issue and usurp their authority.” Stamey v. State, 194 Ga. App. 305, 306 (1) (a) (390 SE2d 409) (1990). Furthermore, since Ms. Simmons was qualified as an expert familiar with Child Abuse Accommodation Syndrome, it was appropriate for her to testify that the children’s behavior at trial was characteristic of victims of sexual abuse. See Knight, 207 Ga. App. at 847 (1). “Accordingly, we conclude that defense counsel’s performance in this matter was not so deficient that there can be shown with a reasonable probability that the results of the proceedings would have been different had he performed otherwise.” Williamson, 207 Ga. App. at 569 (2) (g).

Next, counsel’s decision for the defendant to testify was a strategic matter, as was the decision to question Moss concerning his criminal record. Finally, Moss has not shown prejudice from counsel’s failure to prepare a charge on Child Abuse Accommodation Syndrome since the court properly charged the jury as to the weight to be accorded expert testimony generally. Moss has failed to satisfy either prong of the test for constitutionally ineffective representation: he has established neither representation below reasonable professional standards, nor a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Johnson, supra at 78. Accordingly, the denial of Moss’s motion for new trial was not clearly erroneous.

Judgment affirmed.

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

Decided March 17, 1995.

William T. Hankins III, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Carl P. Greenberg, Michael L. Spotts, Assistant District Attorneys, for appellee.

       OCGA § 17-7-110 was repealed effective January 1, 1995. Ga. L. 1994, p. 1895, § 1. The General Assembly did not codify its provision that the Act repealing OCGA § 17-7-110 would be effective to cases docketed on or after January 1, 1995. Ga. L. 1994, p. 1895, § 13.


text:
    A94A1992.
    BARNES & TUCKER COMPANY v. WESTINGHOUSE ELECTRIC CORPORATION.
    (455 SE2d 409)
   Ruffin, Judge.

This is the second appearance of this case before this court. See Alco Standard Corp. v. Westinghouse Elec. Corp., 206 Ga. App. 794 (426 SE2d 648) (1992).

Aleo Standard Corporation (“Aleo”) sued Westinghouse Electric Corporation (“Westinghouse”) for the negligent repair of certain autotransformers seeking damages for the interruption of its business allegedly caused by the failure of the autotransformers. Westinghouse moved for summary judgment, asserting as one of its grounds that Aleo could not recover economic loss in a negligence action. Thereafter, Aleo amended its complaint to add a claim for breach of implied warranty based on Westinghouse’s alleged failure to repair and rewind the autotransformers in a skillful and careful manner. Westinghouse then supplemented its motion for summary judgment by filing a copy of an “Order Acknowledgment” which Westinghouse sent Aleo upon its receipt of the autotransformers for repair. In addition to indicating Westinghouse’s receipt of the autotransformers, the acknowledgment disclaimed any liability on the part of Westinghouse for breach of statutory, express or implied warranties or economic loss for work to be performed. The trial court granted Westinghouse’s motion on Alco’s negligence and contract claims, and Aleo appealed to this court.

On appeal, this court agreed with Westinghouse that Alco’s negligence claim could not be maintained. See id. at 795. With respect to the contract claim, we held that the trial court erred in finding that the acknowledgment barred the claim because there was no evidence that Aleo ever explicitly accepted the acknowledgment as an amendment to the oral contract for repair of the autotransformers. Thus, we concluded that it must be assumed, for summary judgment purposes, that the terms stated in the acknowledgment never became part of the contract between the parties. Id. at 796. We further held that a jury question remained as to whether Westinghouse failed to rewind the autotransformers in a skillful and careful manner and therefore breached the contract. Id.

Barnes & Tucker Company (“Barnes”) was later substituted as party plaintiff in place of Aleo, and the case proceeded to trial. Barnes moved the court to restrict Westinghouse from referring to the limitation of liability provision in the acknowledgment before the jury. Barnes argued that in Aleo, supra, this court held that the acknowledgment never became part of the contract because there was no evidence of Barnes’ explicit acceptance of the acknowledgment; thus, unless Westinghouse was able to produce evidence of Barnes’ explicit acceptance of the acknowledgment, the issue should not be raised before the jury. The trial court denied the motion based on a contrary construction of Aleo, that the question as to whether the acknowledgment became a part of the oral contract was a matter for the jury. The trial court also denied Barnes’ request that the phrase “explicit acceptance” be included in the jury charge on acceptance of the written acknowledgment.

In its sole enumeration of error, Barnes contends the trial court erred in submitting to the jury and permitting Westinghouse’s attorney to argue the limitation of liability provision contained in the acknowledgment in the absence of any evidence that Barnes explicitly accepted the acknowledgment as an amendment to the oral contract, as required by this court in Aleo, supra. Barnes contends there are only two ways the court’s decision on the breach of contract issue in Aleo can be construed: (1) as a determinative holding that the terms of the acknowledgment never became part of the contract, and that the only issue to be decided by the jury would be whether Westinghouse breached its contractual obligation; or (2) as a holding that Barnes would not be bound by the terms of the acknowledgment unless and until evidence was presented at trial that Barnes had “explicitly accepted the acknowledgment as an amendment to the contract between the parties.” See id. at 796. Barnes argues that since the trial court permitted the jury to consider the terms of the acknowledgment and Westinghouse failed to introduce any evidence of Barnes’ explicit agreement to the terms of the acknowledgment, the trial court violated the law of the case rule applicable to appellate court decisions. See OCGA § 9-11-60 (h).

We do not agree that Aleo must be construed as urged by Barnes. The court did not hold that the acknowledgment was not a part of the contract as a matter of law. The court held that Westinghouse did not satisfy its burden, as must the movant for summary judgment, of showing Barnes’ acceptance of the acknowledgment as an amendment to the contract. Therefore, construing the evidence most favorably to Barnes, the party opposing summary judgment, the court was obligated to find no adoption of the acknowledgment, and the court “assumed” for “summary judgment purposes,” based on the evidence then in the record, that the acknowledgment never became part of the contract. See id. at 796; OCGA § 9-11-56 (c). “[T]he case [then] returned to the trial court in the exact status it held before appellate review, i.e., pending trial for determination of issues of fact.” (Emphasis deleted.) Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 220-221 (1) (235 SE2d 729) (1977). In the instant case, those issues were whether Barnes accepted the acknowledgment as a part of the contract; whether the contract claim was barred by the limitation of warranty provision in the acknowledgment; and whether Westinghouse breached its contractual obligation to rewind the autotransformers in a skillful and careful manner.

Decided March 17, 1995.

Drew, Eckl & Farnham, Clayton H. Farnham, for appellant.

Schreeder, Wheeler & Flint, David H. Flint, Alex J. Simmons, Jr., for appellee.

Moreover, Westinghouse was entitled to introduce additional evidence at trial to show Barnes’ acceptance of the acknowledgment (see id. at 221), and we do not agree with Barnes that Aleo required Westinghouse to produce evidence of “explicit acceptance.” The court merely indicated that there was no evidence in the record that Barnes explicitly accepted the acknowledgment to support the grant of summary judgment to Westinghouse on the contract claim. Furthermore, the construction urged by Barnes is contrary to long-standing authority. This court has previously held that “[e]ven if the contract provides it may not be changed except by writing, parties may subsequently by mutual consent enter into a new agreement at variance with the other. The modified agreement need not be expressed in words, in writing or signed, but the parties must manifest their intent to modify the original contract.” (Citations and punctuation omitted.) Randall & Neder Lumber Co. v. Randall, 202 Ga. App. 497, 498 (414 SE2d 718) (1992). There is no indication that the court in Aleo intended to depart from these well settled principles. Accordingly, the trial court did not err in declining to require Westinghouse to introduce evidence of Barnes’ explicit acceptance.

Since the record shows that Westinghouse introduced evidence of Barnes’ and Westinghouse’s course of business dealings over the years and evidence of the circumstances under which the contract was formed in the instant case from which the jury could have determined that Barnes accepted the acknowledgment, the judgment entered on the jury’s verdict must be affirmed. Rackmyer v. Bradford, 207 Ga. App. 667 (2) (428 SE2d 674) (1993).

Judgment affirmed.

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


text:
    A94A2024.
    WALLACE v. THE STATE.
    (455 SE2d 615)
   Ruffin, Judge.

Donald Wallace appeals from the judgment entered on the jury’s verdict finding him guilty of the offenses of aggravated assault (OCGA § 16-5-21) and possession of a firearm during the commission of a crime (OCGA § 16-11-106). In bifurcated proceedings, Wallace was also convicted of possession of a firearm by a convicted felon (OCGA § 16-11-131) and two counts of recidivism (OCGA § 17-10-7). He was sentenced to serve consecutive terms totaling 30 years in prison.

Viewed in a light to support the verdict, the evidence at trial was that on the night of June 12, 1993, Joe Jones accompanied Cathy Graham in her car to purchase beer. En route to the store, Ms. Graham spotted the defendant’s truck at an intersection. When Graham stopped at the intersection, Wallace walked to the passenger side of Graham’s vehicle, opened the door, put a gun to Jones’ head and fired, saying that Jones was “in the wrong place at the wrong time.” The bullet exited Jones’ head and was later retrieved from the floorboard of Graham’s car. Graham drove to a nearby store and dialed “911” to report the shooting. Her identification and descriptions of Wallace and his truck were conveyed to the Floyd County police officers dispatched in response to the call. After Detective Jerry Boyd interviewed Graham, he discovered blood inside the car and a bullet on the passenger side floorboard.

Shortly before trial, Graham married Wallace and, outside the presence of the jury, invoked the marital privilege and refused to testify against him. At trial, the 911 dispatcher, Nell Reagan, testified that Graham told her Wallace was the shooter and described him, the clothes he was wearing and the vehicle he was driving. Sergeant George Lemming testified that, acting on information supplied by Graham, he found Wallace’s truck parked at his mother’s home. The hood was hot, but Wallace was not at the house. He then went to a nearby bar, the Starlight Club, where he found and arrested Wallace dressed as Graham described him.

At trial, none of Wallace’s three alibi witnesses testified that Wallace had been at the Starlight Club all night. The State called a rebuttal witness, Thomas Dotson, who testified that on the night of the shooting, he saw Wallace come into the Starlight Club shortly before the police arrived. Wallace told Dotson that if the police came in asking about him, to say that Wallace had been at the club all night. Dotson also testified that Wallace arrived with blood under his fingernails and claimed that he “got into it with some boy at a store.”

1. In his first three enumerations of error, Wallace attacks the sufficiency of the evidence of aggravated assault and contends the court erred in refusing to direct a verdict on that charge because the indictment does not specifically set forth how Wallace assaulted the victim and because there is no evidence Wallace possessed a handgun.

“ ‘The general rule that allegations [in an indictment] and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ . . . [Cit.]” DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969). The instant indictment tracked the language of OCGA § 16-5-21 in alleging that Wallace made “an assault upon the person of Joe Jones, with a handgun, a deadly weapon.” This language is not too vague to inform the accused of the charges against him. See Haisman v. State, 242 Ga. 896 (1) (252 SE2d 397) (1979). The evidence at trial was that Wallace shot Jones in the head. While Jones did not testify that he saw the gun, he saw a flash and the bullet that passed through his head was recovered from the floorboard of the car where he was sitting. Viewing this evidence in a light most favorable to the verdict, it was sufficient for any rational trier of fact to find Wallace guilty of aggravated assault and possession of a handgun beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Wallace next enumerates as error the court’s admission of hearsay testimony from the 911 operator Reagan and Detective Boyd.

“OCGA § 24-3-1 (b) provides that ‘hearsay evidence is admitted in specified cases from necessity.’ . . . ‘The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.’ [Cits.]” (Emphasis omitted.) Higgs v. State, 256 Ga. 606, 607 (3) (351 SE2d 448) (1987). “In this case, [Cathy Graham] was unavailable as a witness because of her [marriage to Wallace after the shooting] and because [she refused] to testify against him. OCGA § 24-9-23. There was, indeed, a ‘necessity’ that the [jury] be acquainted with the statements of the only eyewitness [to the shooting besides Jones, whose contemporaneous perceptions were obviously less detailed and complete than Graham’s].” (Emphasis omitted.) Id. at 608. Graham’s statements to the 911 operator, Reagan, are trustworthy because she made them within minutes of the shooting. Her statements to Detective Boyd in the course of his official investigation provide similar indicia of reliability. Moreover, Graham never disavowed or retracted her statements to Reagan or Detective Boyd. See id. Under these circumstances, the trial court correctly ruled that Graham’s statements to 911 dispatcher Reagan and Detective Boyd were admissible as an exception to the general hearsay rule. Id.

3. Wallace next enumerates as error the court’s allowing the State to call Thomas Dotson as a rebuttal witness when his name was not provided in response to counsel’s request in advance of trial. However, “[t]he State’s need to call [Dotson] for rebuttal did not arise until [the defense put up evidence that Wallace was at the Starlight Club at the time Jones was shot], and there is no requirement to give the defendant the names of witnesses who will be used in rebuttal unless the State knows the witness will be called. [Cit.]” Etheridge v. State, 210 Ga. App. 96, 99 (3) (435 SE2d 292) (1993).

4. Wallace contends the court erred by refusing to give an orally requested charge on prior inconsistent statements. He argues that because Jones’ testimony at trial was inconsistent with testimony he gave at an earlier hearing, the court erred in failing to give the requested charge. Even if such a charge were appropriately adjusted to the facts in this case, the “ ‘[f]ailure to charge in the absence of a written request is not such a substantial error as to be harmful as a matter of law. . . . Furthermore, it should be noted that the court below charged the principles of law relating to credibility [and impeachment] of witnesses generally. Under those circumstances the failure to include (a charge) [on prior inconsistent statements as substantive evidence] in the absence of written request is not error.....’ [Cits.]” Williamson v. State, 188 Ga. App. 307, 309 (4) (372 SE2d 685) (1988).

5. Finally, Wallace’s contention that the court incorrectly applied the sentencing provisions for recidivists is without merit. Under the general recidivist statute, OCGA § 17-10-7 (a), the trial court was required to sentence Wallace to the “longest period of time prescribed for the punishment” of aggravated assault (20 years under OCGA § 16-5-21 (b)); for possession of a firearm during the commission of a felony (five years under OCGA § 16-11-106 (b)); and for possession of a firearm by a convicted felon (five years under OCGA § 16-11-131 (b)). Wallace received consecutive sentences totaling 30 years. “It follows that the sentence imposed is within the limits prescribed by law.” Getty v. State, 207 Ga. App. 736, 738 (429 SE2d 100) (1993).

Under OCGA § 17-10-7 (a) the sentencing judge was also authorized to exercise his discretion, once the sentences were imposed, to probate or suspend the maximum sentences, but the record reveals he elected not to do so in this case. “It is only where the trial court has a legal discretion to exercise but fails to do so, instead resting the decision upon an erroneous point of law, that reversal must follow. In the absence of any affirmative showing to the contrary, the trial court is presumed to have exercised its discretion in imposing appellant’s sentence. [Wallace] [has] no viable cause for complaint that, in the exercise of its discretion, the trial court declined to probate or suspend a portion of the recidivist sentence.” (Citations, punctuation and emphasis omitted.) Cox v. State, 205 Ga. App. 375, 376 (2) (422 SE2d 68) (1992).

Decided March 17, 1995.

Garner & Barnes, Richard E. Barnes, for appellant.

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

6. We do not consider Wallace’s untimely supplemental enumerations of error filed pro se on November 18, 1994. “This appeal was docketed on [June 2, 1994], and [Wallace] was required to file any enumerations of error within 20 days of that date. An enumeration of error may not be amended after the original filing time has expired. [Cits.]” Parham v. State, 166 Ga. App. 855, 856 (2) (305 SE2d 599) (1983).

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A94A2038.
    SOUTHERN DRAYAGE, INC. et al. v. WILLIAMS.
    (455 SE2d 418)
   Pope, Presiding Judge.

This case arises out of a traffic accident which occurred in Gwinnett County, Georgia on November 4, 1990.

Plaintiff Dianna H. Williams, a Gwinnett County resident, was a passenger in a car that was struck by a tractor-trailer. The tractor-trailer was owned by defendant Southern Drayage, Inc., an interstate motor common carrier, and driven by Southern Drayage’s employee, defendant Charles Armstrong. Defendant Vanliner Insurance Company is Southern Drayage’s liability insurance carrier. On October 2, 1992, plaintiff filed suit against the above-named defendants in the State Court of Fulton County, Georgia. Defendants answered, denying liability. Southern Drayage and Armstrong subsequently filed a motion to transfer venue. By consent order (Consent Order) dated August 25,1993, the parties agreed to transfer the case as it related to Southern Drayage and Armstrong to the State Court of Gwinnett County. The parties also agreed that jurisdiction and venue as to Vanliner was proper and would remain in Fulton County. On September 21, 1993, plaintiff received the bill of costs from the Clerk of the State Court of Fulton County. It is undisputed that plaintiff never paid the court costs.

On October 25, 1993, plaintiff filed a motion for reconsideration with the State Court of Fulton County seeking to have the Consent Order set aside and vacated. Vanliner filed a motion to dismiss, or in the alternative, for summary judgment on November 24, 1993. By order dated February 7, 1994, the trial court granted plaintiff’s motion for reconsideration and upon reconsideration denied Southern Dray-age and Armstrong’s motion to transfer venue. The trial court also denied Vanliner’s summary judgment motion. The trial court then issued a certificate for immediate review, and we granted defendants’ application for interlocutory appeal.

1. Southern Drayage and Armstrong contend that the trial court erred in reconsidering the Consent Order and in subsequently denying their motion to transfer venue. Specifically, they argue that at the time the trial court set aside the Consent Order, the case had already been transferred and dismissed as a matter of law in accordance with Uniform State Court Rule 19.1 (G). We disagree. Rule 19.1 (G) provides that when a case is transferred and the plaintiff does not pay the costs within 20 days of billing, the case shall automatically stand dismissed. However, Rule 19.1 (F) provides that the transfer order “shall state that unless plaintiff pays all accrued court costs within 20 days of mailing or delivery of the cost bill to plaintiff, the action shall automatically stand dismissed without prejudice.” (Emphasis supplied.) In this case, the Consent Order did not contain the language required by Rule 19.1 (F), and therefore does not comply with that Rule. See Young v. Martin Drilling & Blasting, 195 Ga. App. 133, 134 (1) (392 SE2d 714) (1990). Moreover, the Consent Order cannot be said to be in substantial compliance with Rule 19.1 (F) because it makes no mention whatsoever of the payment of accrued court costs. See Young, 195 Ga. App. at 134-135 (Deen, P. J., dissenting). Consequently, the lawsuit does not stand dismissed as a matter of law.

2. We also reject the contention that the trial court lacked the authority to reconsider and vacate the Consent Order. During the term in which a judgment or order is rendered, the trial judge has the power “to revise, correct, revoke, modify, or vacate . . .” the judgment or order if a meritorious reason exists for doing so. See Pekor v. Clark, 236 Ga. 457, 458 (1) (224 SE2d 30) (1976); OCGA § 9-11-60 (h). Here, the record demonstrates that the parties stipulated in the Consent Order that jurisdiction and venue as to Vanliner was proper in Fulton County. Yet after the Consent Order was entered, defendants’ counsel indicated that he intended to contest jurisdiction over Vanliner. Based on the above, we conclude that there were meritorious reasons for the trial court to reconsider and vacate the Consent Order.

3. Southern Drayage and Armstrong argue that after vacating the Consent Order, the trial court improperly denied their motion to transfer venue to Gwinnett County. We agree. It is well settled that “[v]enue for suits against individuals ordinarily lies in the county of the defendant’s residence, and venue as to corporations, whether foreign or domestic, is established by statute. 1983 Ga. Const., Art. VI, Sec. II, Par. VI.” Gault v. Nat. Union Fire Ins. Co. of Pittsburgh, 208 Ga. App. 134, 135 (430 SE2d 63) (1993). Here, the record shows that Southern Drayage is a nonresident motor carrier engaged exclusively in interstate commerce. It is undisputed that it is registered in Georgia pursuant to Section 46-7-16 (a) of the Motor Carrier Code. Although Southern Drayage does not have a place of business in Georgia, it does have a registered agent for service of process in Fulton County. This agent was appointed in accordance with OCGA § 46-7-17 (a).

Under Section 46-7-17 (b) of the Motor Carrier Code, actions against nonresident motor common carriers may be brought in the county in which the cause of action arose. In this case that would be Gwinnett County. However, OCGA § 46-7-17 (b) also expressly states that the venue prescribed therein “shall be cumulative of any other venue provided by law.” Plaintiff argues that as a foreign corporation authorized to transact business in this state, Southern Drayage is deemed to reside in the county where its registered office is maintained (Fulton County) in accordance with Section 14-2-510 (b) of the Georgia Business Corporation Code. This argument is fundamentally flawed. Although it is true that under OCGA § 14-2-510 we have determined that a registered agent’s business office must be the corporation’s registered office, WBC Holdings v. Thornton, 213 Ga. App. 48, n. 1 (443 SE2d 686) (1994), the venue prescribed in that Code section relates only to domestic and foreign corporations “authorized to transact business in this state.” The record clearly demonstrates that in this case Southern Drayage is not a foreign corporation authorized to transact business in the State of Georgia. Moreover, because its operations are exclusively interstate in nature, Southern Drayage is not required to obtain a certificate of authority from the Secretary of State because “(e)ffecting transactions in interstate or foreign commerce” is not considered “transacting business” in the state. See OCGA § 14-2-1501 (b) (11). Accordingly, the venue provisions of the Business Corporation Code are not applicable to Southern Drayage in this case. Based on the above, we find the cases cited by plaintiff in support of her contention that venue as to Southern Drayage is appropriate in Fulton County, merely because it has a registered agent for service there, unpersuasive and factually distinguishable from the case at bar.

Decided March 17, 1995.

Dennis, Corry, Porter & Gray, William E. Gray II, Stephanie F. Goff, J. Steven Fisher, for appellants.

C. Lawrence Jewett, Jr., for appellee.

Furthermore, under the Nonresident Motorist Act, OCGA § 40-12-3, venue as to either Southern Drayage or Armstrong, who is a resident of Mississippi, would only be appropriate in Gwinnett County because the accident occurred in Gwinnett County; plaintiff is a resident of Gwinnett County; and there are no resident joint tortfeasors involved in this case. Because there are no resident joint tortfeasors here, the venue provision found in Article VI, Section II, Paragraph IV of the Georgia Constitution also is not applicable. Additionally, venue under Georgia’s Long Arm Statute as to Armstrong only would be appropriate in Gwinnett County. See OCGA § 9-10-93.

In light of the foregoing, we hold that the trial court erred in denying Southern Drayage and Armstrong’s motion to transfer venue. We therefore reverse the denial of said motion and remand the case to the trial court with the instruction that the action against Southern Drayage and Armstrong be transferred to the State Court of Gwinnett County.

4. Finally, we find no merit to Vanliner’s contention that it is entitled to summary judgment because the trial court lacks subject matter jurisdiction to hear this case. We note that this same argument was made by Vanliner and rejected by this court in Williams v. Southern Drayage, 213 Ga. App. 895 (446 SE2d 758) (1994). Consequently, the trial court did not err in denying Vanliner’s motion for summary judgment.

Judgment affirmed in part and reversed and remanded in part with instruction.

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

       In this case, Vanliner cannot be considered a joint tortfeasor for venue purposes because the cause of action against it arises in contract. See Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 711, 713-714 (1) (302 SE2d 585) (1983).

        Williams v. Southern Drayage, supra, is a companion case to the case at bar, and was originally brought by plaintiff’s husband, Norman Williams, in the Superior Court of Fulton County. In that case we reversed the trial court’s grant of summary judgment to Vanliner which was premised on lack of subject-matter jurisdiction.