author: Sognier, Judge. McMurray, Presiding Judge,

text:
    A90A0824.
    WALDEN et al. v. JOHN D. ARCHBOLD MEMORIAL HOSPITAL, INC. et al.
    (398 SE2d 271)
   Sognier, Judge.

Charles McIntyre, Dewayne Mitchell, Alberta Glenn, and siblings of James Edward Anderson brought suit for medical malpractice, negligence, and wrongful death against John D. Archbold Memorial Hospital and others, seeking recovery of damages stemming from Anderson’s death. It was alleged that Anderson had been injured by defendants on December 6, 1986 and had died from those injuries on January 14, 1987. Plaintiffs originally filed suit on December 2, 1988, but voluntarily dismissed that suit and refiled the instant suit on August 3, 1989.

In the renewed complaint, plaintiffs identified themselves as “next of kin and heirs.” Defendants moved in August 1989 to dismiss the complaint for failure to state a claim upon which the relief demanded could be granted, based on the failure of plaintiffs to name the real parties in interest to the varying claims and on the running of the statute of limitation. The trial court granted the motion in part, holding that in the absence of a surviving spouse, the wrongful death claim could be brought only by McIntyre and Mitchell (by next friend Pauline Mitchell), as Anderson’s illegitimate children, in effect dismissing the remaining plaintiffs. The trial court directed plaintiffs’ counsel to recast the complaint to reflect that McIntyre and Mitchell b/n/f Mitchell were the plaintiffs in the wrongful death action and to file and serve the complaint within 15 days. The trial court also granted defendants’ motion to dismiss as to the remaining claims on the basis that those claims had not been prosecuted within the statutory period by any person having the right to do so, and directed that the recast complaint not include any claims for those other damages.

No express determination of finality was included in the order, see OCGA § 9-11-54 (b), and no certificate for immediate review was sought from the order, see OCGA § 5-6-34 (b), due to plaintiffs’ understanding that the order entered was a proposal rather than a final judgment. Plaintiffs thereafter filed an amended complaint in compliance with the directions in the order insofar as McIntyre and Mitchell b/n/f Mitchell were concerned, but added Glenn, as “personal representative” of Anderson’s estate, as plaintiff in the negligence and medical malpractice claims for the purpose of seeking damages for Anderson’s pain and suffering, his medical, funeral, and other expenses, and for attorney fees and punitive damages. Plaintiffs then moved for a rehearing on the order. The trial court entered a second order in which it allowed the amended complaint as to the wrongful death claim, but dismissed Glenn as to the remaining claims for the same reason set forth in the earlier order. The trial court then certified its order pursuant to OCGA § 5-6-34 (a), and plaintiffs’ application for interlocutory appeal was granted.

1. Appellants contend the trial court erred by ruling that Anderson’s illegitimate children (in the absence of a surviving spouse) had the exclusive right of action on the wrongful death claim under OCGA § 51-4-2, thereby dismissing Anderson’s siblings, the remaining appellants, from pursuing the claim. Although appellant siblings enumerate as error that OCGA § 51-4-2 violates their equal protection and due process rights, a matter not addressed by the Supreme Court when considering a constitutional challenge to OCGA § 51-4-2 in Mack v. Moore, 256 Ga. 138 (345 SE2d 338) (1986), appellants’ constitutional challenge to the statute was not raised before and passed on by the trial court in order to invoke the jurisdiction of the Supreme Court. Accordingly, this court has jurisdiction of the appeal. Mason v. Town of Berlin, 128 Ga. App. 177 (196 SE2d 181) (1973).

The constitutionality of OCGA § 51-4-2 is thus presumed, see Corvair Furniture Mfg. Co. v. Bull, 125 Ga. App. 141, 144 (2) (186 SE2d 559) (1971), and the statute, by its express terms, vests the cause of action for the wrongful death of a spouse or parent in the surviving spouse or, if there is no surviving spouse, in the child or children of the decedent. (It should be noted that OCGA § 51-4-2 (f), which provides that the illegitimacy of a child does not bar recovery under the statute, became effective after Anderson’s death on July 1, 1988, see Ga. L. 1988, p. 1720, § 17, although the holding in Edenfield v. Jackson, 251 Ga. 491 (306 SE2d 911) (1983) is applicable here.) Construed strictly because it is in derogation of common law, Boggan v. Boggan, 145 Ga. App. 401, 402 (243 SE2d 664) (1978), OCGA § 51-4-2 clearly does not encompass the maintenance of a wrongful death action by the siblings of a decedent. Accordingly, the trial court properly dismissed appellant siblings as parties to the wrongful death suit.

2. Contrary to the dissent’s assertion, a review of the errors enumerated and the arguments raised by the parties in their briefs reveals that the trial court’s ruling that the wrongful death suit be recast in the names of appellants McIntyre and Mitchell b/n/f Mitchell is not challenged by any of the parties to this appeal. Rather, appellant siblings argue that they should be allowed to maintain the wrongful death suit as plaintiffs because the siblings “are fearful that should [McIntyre and Mitchell, the illegitimate children], to whom the trial court has given the exclusive cause of action, be unable to prove their right to sue and inherit as ‘children’ of the decedent, that [appellant siblings] will be forever barred by the statute of limitations from pursuing their claim as the next of kin of the decedent.” Although appellant siblings assert that they should remain as plaintiffs in the wrongful death suit “until it is determined whether or not there is a surviving child,” since appellant siblings can never qualify as proper plaintiffs under OCGA § 51-4-2, as construed above, there is no merit to their argument. Further, even as “next of kin” under OCGA § 51-4-5 (a), they could not maintain an action in their own name since the right of action lies with the administrator of the decedent’s estate. DeLoach v. Emergency Med. Group, 155 Ga. App. 866, 867 (2) (274 SE2d 38) (1980), overruled in part sub silentio as to OCGA § 9-3-71 (former Code Ann. § 3-1102) by Clark v. Singer, 250 Ga. 470 (298 SE2d 484) (1983) and Shessel v. Stroup, 253 Ga. 56, 58 (316 SE2d 155) (1984). Thus, it appears that this court has not been called upon to address the trial court’s handling of the issue whether McIntyre and Mitchell are “children” under OCGA § 51-4-2.

3. Appellants contend the trial court erred by dismissing their causes of action for negligence and medical malpractice and the damages sought for medical and funeral expenses, the decedent’s pain and suffering, attorney fees, and punitive damages. Under the plain language in OCGA §§ 9-2-41 and 51-4-5 (b), upon the death of Anderson these causes of action vested in the administrator of his estate, not, as appellants assert, in them as Anderson’s heirs and next of kin. Contrary to appellants’ argument, Harrison v. Holsenbeck, 208 Ga. 410, 412 (67 SE2d 311) (1951) does not support their position. In Harrison the successor administrator to an estate sought to cancel certain deeds to real property which had not been challenged within the statute of limitation either by the predecessor administratrix or the heirs at law. The Supreme Court’s holding was based on an application of former Code Ann. § 113-907 (OCGA § 53-4-9), which authorizes heirs at law to institute actions in the absence of an administrator when real property is involved. See also Arnold v. Freeman, 181 Ga. 654, 657 (2) (183 SE 811) (1935). Since the case at bar does not involve real property, OCGA § 53-4-9 is not applicable, and Harrison, supra, is distinguishable.

Accordingly, since appellants were not the proper parties to assert the causes of action under OCGA §§ 9-2-41 and 51-4-5 (b), the dismissal of them was proper.

4. The dissent contends that the trial court should be ordered to substitute the administrator of Anderson’s estate to prosecute the causes of action under OCGA §§ 9-2-41 and 51-4-5 (b). As a general rule, “the lack of an indispensable party is not cause for dismissal, particularly if the indispensable party can be joined. [Cits.] . . . Thus, if plaintiff[s] [are] not the real parties] at interest, the court should in hearing the preliminary defense make a determination under [OCGA § 9-11-17], and if the indispensable party can be joined, the court should ordinarily permit the joinder and not dismiss but take such other action as may be required by [OCGA § 9-11-17 or OCGA § 9-11-14. Cit.].” Sherwood Mem. Park v. Bryan, 142 Ga. App. 664, 665 (236 SE2d 903) (1977). In the case sub judice, however, no such joinder or substitution could have occurred because no administrator was appointed until nearly five months after the trial court’s order.

The record establishes that appellees moved to dismiss appellants’ complaint under OCGA § 9-11-12 (b) on August 28, 1989. On October 13, 1989, the trial court ruled that the proper party to pursue the claims under OCGA §§ 9-2-41 and 51-4-5 (b), i.e., the administrator of Anderson’s estate, was not among those plaintiffs bringing the suit. On November 28, 1989, when the trial court issued its final ruling on appellees’ motion, no administrator to Anderson’s estate had been named. Thus, the indispensable party to these claims did not exist as a matter of law, and there existed no party who was subject to service of process as temporary administrator of Anderson’s estate who could be joined under OCGA § 9-11-19 or substituted under OCGA § 9-11-25. The supplemental record reflects that a temporary administratrix of Anderson’s estate was not named until April 23, 1990, nearly five months after the final order in this case and approximately four months after the appeal from the trial court’s order was docketed in this court.

While a liberal construction of the Civil Practice Act is the rule in the appellate courts of this State, Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984), the trial court here cannot be held to have erred after a motion to dismiss was made in August 1989, by not allowing appellants in November 1989 to join or substitute as plaintiff a party that did not exist at that time, and did not exist as a matter of law until April 1990. The fact that the indispensable party or real party in interest did not exist to be substituted into this action at the time the judgments below were rendered distinguishes this case from Amica Mut. Ins. Co. v. Fleet Multi Fuel Corp., 178 Ga. App. 859 (344 SE2d 742) (1986), cited by the dissent, and Dover Place Apts. v. A & M Plumbing &c. Co., 255 Ga. 27 (335 SE2d 113) (1985), discussed therein. That fact also distinguishes the case at bar from S. D. H. Co. v. Stewart, 135 Ga. App. 505, 508 (2) (218 SE2d 268) (1975), in which this court, after noting the defendant’s failure to pursue its “real party in interest” defense under OCGA § 9-11-17, reversed the judgment awarded the plaintiff as an individual rather than as the individual’s wholly owned corporation, with direction that the individual join the corporation as party plaintiff.

It thus affirmatively appears of record that at the time the trial court took appellees’ motion to dismiss under advisement, the proper party to pursue the claims pursuant to OCGA §§ 9-2-41 and 51-4-5 (b) did not exist and accordingly could not have been made a party plaintiff. Therefore, the trial court did not err by dismissing appellants as plaintiffs in these claims and did not err by failing to substitute in their stead a nonexistent party whose existence was outside the jurisdiction of the trial court to create. See, e.g., OCGA § 53-6-26.

This is not to say, however, that the trial court did not err by holding that appellants in any representative capacity they might assume are barred from asserting the claims personal to Anderson because the statute of limitation had run prior to the appointment of an administrator to Anderson’s estate. OCGA § 9-3-92 provides that “[t]he time between the death of a person and the commencement of representation upon his estate . . . shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years. At the expiration of the five years the limitation shall commence. . . .” It thus appears that while the estate was unrepresented, OCGA § 9-3-92 tolled any cause of action under OCGA §§ 9-2-41 and 51-4-5 (b) in which Anderson’s estate is interested or concerned, see Patellis v. King, 52 Ga. App. 118, 126 (182 SE 808) (1935); DeLoach, supra at 868 (2), and that tolling continues as to those causes of action a temporary administrator, as opposed to a permanent administrator, is unable as a matter of law from asserting on behalf of the estate. See Collins v. Henry, 155 Ga. 886, 890 (2) (118 SE 729) (1923); Baumgartner v. McKinnon, 137 Ga. 165 (73 SE 518) (1911). Compare Wilson v. Pollard, 190 Ga. 74 (8 SE2d 380) (1940). At the time the November 1989 order was issued, however, none of the appellants had standing to assert that this ruling by the trial court was error. The record before this court does not reflect that appellant Glenn, upon obtaining letters of temporary administration and legal authority to proceed as representative of Anderson’s estate, has attacked the November 1989 judgment by any of the exclusive methods set forth in OCGA § 9-11-60, see generally C & S Nat. Bank v. Burden, 145 Ga. App. 402, 403 (2) (244 SE2d 244) (1978), of filed a new complaint, as the proper plaintiff to those causes of action dismissed in the November 1989 judgment (which upon motion could thereafter be joined or consolidated with the wrongful death action currently before the trial court). Nor does it appear of record that appellants McIntyre and Mitchell b/n/f Mitchell, the remaining plaintiffs in the amended complaint, have moved the trial court to amend their complaint to add the recently named temporary administratrix of Anderson’s estate and the causes of action which the temporary administratrix alone can pursue. Hence, this court is unable to address the effect OCGA § 9-3-92 may have on the issues in this case.

In summary: (1) Since appellant siblings cannot pursue a wrongful death claim against appellees under OCGA § 51-4-2, the trial court did not err by dismissing them. (2) Since no party contends the trial court erred by naming McIntyre and Mitchell b/n/f Mitchell as plaintiffs in the wrongful death suit, the trial court has committed no reversible error by so naming them. (3) Further, since appellants were not the real parties in interest to assert the claims personal to the decedent, the trial court did not err by dismissing them. (4) Finally, since the proper party to the claims personal to the decedent did not exist as a matter of law at the time the trial court entered its order, the trial court did not err by failing to join or substitute this nonexistent party as party plaintiff. We emphasize that as to the parties to this appeal, the trial court’s erroneous conclusion regarding the running of the statute of limitation against Anderson’s estate does not affect an affirmance of the judgment granting appellees’ motion to dismiss appellants, and discussion of OCGA § 9-3-92 should be considered, at best, helpful dicta.

Judgment affirmed.

Carley, C. J., Birdsong, Pope, Beasley and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., and Banke, P. J., dissent.

McMurray, Presiding Judge,

dissenting.

As I am not disposed to concur in the majority view, I must respectfully dissent and set forth my views herein.

On December 2, 1988, Delores Walden, Alberta Glenn, Willie Lee Anderson, Willie Bell Johnson, Zion Anderson, Jonathan Anderson, Charles McIntyre and Wayne Mitchell (plaintiffs), “individually and as next of kin and heirs . . .” of James Edward Anderson, filed an action against John D. Archbold Memorial Hospital, Inc., and members of the hospital’s staff (defendants) for allegedly causing the death of James Edward Anderson on January 14, 1987. More specifically, plaintiffs alleged that James Edward Anderson died after he was severely burned while a patient of defendant hospital and that the fire was the result of “negligent” patient treatment; “negligent” patient supervision and sub-standard medical care, provisions and facilities. Plaintiffs’ complaint was not set-out in counts, nor were damages segregated according to cause of action. Instead, plaintiff alleged general negligence and sought “compensatory and punitive damages,” damages for “great physical and mental pain and suffering, . . . permanent scarring, medical expenses, loss of life, loss of enjoyment of life, funeral expenses, and lost earnings.” Plaintiffs also sought “reasonable attorney’s fees and costs. . . .”

On February 8, 1989, plaintiffs dismissed the complaint without prejudice and on August 3, 1989, they filed a renewal action “individually and as next of kin . . .’’of James Edward Anderson. (Plaintiff Willie Lee Anderson was not included as a party to the renewal action.) Plaintiffs sought the same damages as alleged in the original complaint, but alleged medical malpractice, negligence and wrongful death in separate counts. Defendants later answered and moved to dismiss, claiming that plaintiffs “have no cognizable right to recover for the wrongful death of James Edward Anderson, or his conscious pain and suffering or any final expenses [and that] the applicable statute of limitations has run against the party or parties who could lawfully present such claims.” More specifically, defendants argued that the wrongful death action should be dismissed because it was not prosecuted by the decedent’s spouse, children or administrator; that the claims for pain and suffering, medical expenses, funeral expenses and other costs should be dismissed because it was not prosecuted by the decedent’s spouse, children or administrator; that the claims for pain and suffering, medical expenses, funeral expenses and other costs should be dismissed because it was not prosecuted by the administrator of the decedent’s estate and that all claims should be dismissed “[s]ince no person having the right to sue did so prior to the expiration of the [two-year statutes] of limitations. . . . Alternatively, [defendants argued that] if any of those plaintiffs who originally sued are a surviving spouse, child or parent of James Edward Anderson, having dismissed the previous action and having not brought the renewal action in the right capacity, the claim should likewise be dismissed.”

In response, plaintiffs argued that “there is no requirement that they plead their capacity with any more specificity [and that they are] the real parties in interest in this case.” However, plaintiffs went on and stated that if they “have failed in any manner on any cause of action to properly allege their capacity to maintain the actions, [then] the same can and should be cured by amendment [so that subsequent actions by the proper party will] not be barred by the statute of limitations.” Plaintiffs subsequently amended the renewed complaint and named Wayne Mitchell and Charles McIntyre as illegitimate children of James Edward Anderson and designated Alberta Glenn “as Personal Representative of the estate of JAMES EDWARD ANDERSON. . . .”

On November 28, 1989, the trial court entered a “FINAL ORDER ON DEFENDANTS’ MOTION TO DISMISS” and found, in pertinent part, that “[t]here are two allegedly illegitimate children of James Edward Anderson among the group of plaintiffs who denominated themselves as heirs and next of kin of James Edward Anderson . . .; [that there] has been no administrator appointed to the estate of James Edward Anderson ... as of the date of this order[; that the] statute of limitations for a suit alleging personal injuries . . . ran on December 5, 1988; [that the] statute of limitations for a suit alleging wrongful death ran on January 13, 1989; [that the] right of action for personal injuries under the survival statute (OCGA section 9-2-41) can be prosecuted only by the administrator of the decedent’s estate; [that the] right of action for funeral, medical and other expenses resulting from the injury and death of a deceased is in the administrator of the deceased’s estate (OCGA section 51-4-5 (b)); [and that the] right of action for wrongful death of a parent belongs to the children, if there is no surviving spouse (OCGA section 51-4-2). . . .” The trial court then “ORDERED AND ADJUDGED THAT:

“A. Any and all claims for the wrongful death of James Edward Anderson are in [Wayne] Mitchell and Charles McIntyre, his alleged illegitimate children.
“B. The plaintiffs’ amendment to their renewed and recommenced complaint to reflect that this is an action by [Wayne] Mitchell, by Pauline Mitchell, his next friend, and Charles McIntyre, made prior to the entry of this pre-trial order, is hereby allowed and ordered.
“C. The plaintiffs’ amendment to their renewed and recommenced complaint to change the capacity of Alberta Glenn to administrator of the estate of James Edward Anderson, deceased, to include claims for conscious pain and suffering, funeral, medical and other expenses, punitive damages, and attorneys’ fees and costs, is barred by the statute of limitations, and even though made prior to the entry of this pre-trial order, is hereby disallowed and dismissed upon defendants’ motion.
“D. Since the statute of limitations ran prior to the appointment of any administrator of the estate of James Edward Anderson, deceased, plaintiffs, in their individual or representative capacities, are forever barred from claims for recovery of conscious pain and suffering, funeral, medical and other expenses, punitive damages, and attorneys’ fees and costs.
“E. Plaintiffs shall be given the opportunity of immediate review by the Court of Appeals of my findings of fact and conclusions of law, including my disallowance of the amended complaint to the extent that it seeks to maintain an action by an administrator seeking recovery for claims of conscious pain and suffering, funeral, medical and other expenses, punitive damages, and attorney fees and cost.”

In my view, this Court granted plaintiffs’ appeal to determine whether the trial court erred in failing to substitute proper parties to the various causes of action and in holding that the statutes of limitation cut off the administrator’s claims for statutory damages under OCGA § 51-4-5 (b) and damages stemming from the decedent’s OCGA § 9-2-41 tort claim.

“Every action shall be prosecuted in the name of the real party in interest. . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” OCGA § 9-11-17 (a). Under this Code subsection, defendants’ OCGA § 9-11-12 (b) (6) motion to dismiss based on the prosecution of a suit by improper parties should have been “treated as a matter in abatement [and] the erring parties], rather than having judgment entered against [them, should have been] precluded from proceeding with the suit until the error [had been] corrected by the substitution of the proper party plaintiff[s].” Amica Mut. Ins. Co. v. Fleet Multi Fuel Corp., 178 Ga. App. 859, 861 (344 SE2d 742).

Decided October 16, 1990.

James C. Banks, for appellants.

William U. Norwood III, for appellees.

Therefore, I would hold that the trial court erred in entering judgment for defendants based on expirations of the applicable statutes of limitation and in failing to substitute the real parties in interest to the various causes of action. More specifically, in my view, the record indicates that an administrator of the decedent’s estate should have been appointed and substituted to prosecute the OCGA § 9-2-41 survival action and the OCGA § 51-4-5 (b) action for statutory damages. The record also shows Wayne Mitchell and Charles McIntyre have not been declared children of the deceased. Under the particular facts and circumstances of the case sub judice, I find that the genuine issues of material fact remain as to the real parties in interest to the wrongful death action. The trial court could have resolved this question by acting on plaintiffs’ response to defendants’ motion to dismiss, i.e., that “[i]f plaintiffs have failed in any manner on any cause of action to properly allege their capacity to maintain the actions, the same can and should be cured by amendment.” See Tarver v. Martin, 175 Ga. App. 689 (1) (334 SE2d 18). Accordingly, the case sub judice should be reversed and remanded for the trial court to substitute an administrator to proceed with the OCGA § 9-2-41 survival action and the OCGA § 51-4-5 (b) action for statutory damages. The trial court should be directed to resolve the issues of whether Wayne Mitchell and Charles McIntyre are illegitimate children of the deceased and, based on its findings, substitute the real party/parties in interest to the wrongful death action as is prescribed in OCGA § 51-4-1 et seq.

I am authorized to state that Presiding Judge Deen and Presiding Judge Banke join in this dissent.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1043.
    GALBREATH v. VONDENKAMP et al.
    (398 SE2d 278)
   Cooper, Judge.

Appellant appeals the trial court’s grant of summary judgment to appellees. Appellees, owners of real property, had contracted with a contractor for the construction of a residence. Appellant, a material-man, was engaged by the contractor to furnish, and did furnish, labor and materials for heating, air conditioning and electrical wiring on the residence. Appellant completed his work and last furnished labor and materials to the residence on November 15, 1986. When he was not paid by the contractor, appellant filed his claim of lien on December 29, 1986, and filed suit against the contractor on September 9, 1987, with the contractor filing an answer in the suit on or about October 17, 1987. On or about June 8, 1988, appellant received notice that the contractor had filed bankruptcy, and thereafter appellant filed a proof of claim in the bankruptcy proceeding for $3,350, the amount of the debt. Appellant filed this action against appellees pursuant to OCGA § 44-14-361.1 (a) (4) on January 6, 1989, to enforce the lien against the property. The trial court granted appellees’ motion for summary judgment on the grounds that appellant had not complied with the requirement to file an action against the property owner within twelve months from the time the debt becomes due. Appellant’s primary enumeration of error is that the trial court erred in granting appellees’ summary judgment motion. The three other enumerations raised by appellant — that the court erred in applying Adair Mtg. Co. v. Allied Concrete Enterprises, 144 Ga. App. 354 (241 SE2d 267) (1977); Dodson v. Earley, 161 Ga. App. 666 (290 SE2d 105) (1982), and OCGA § 44-14-361.1 — will be dealt with in our discussion of the primary enumeration.

After giving much consideration to the parties’ arguments in this case, we determine that the trial court should not have granted appellees’ motion for summary judgment. We find the reasoning advanced in the cases of In re Village Centers, 80 BR 574 (N.D. Ga. 1987) and Melton v. Pacific Southern Mtg. Trust, 241 Ga. 589 (247 SE2d 76) (1978) to be persuasive in finding that an intervening bankruptcy of a contractor which occurs in a properly filed suit to enforce a lien of a subcontractor does not deprive that subcontractor from enforcing his lien in an in rem action against the owner of the property.

OCGA § 44-14-361.1 (a) (4) provides that if, after a subcontractor files an action against a contractor, no judgment can be obtained against the contractor because of his adjudication in bankruptcy, the subcontractor does not have to obtain a judgment against the contractor as a prerequisite to enforcing his lien but may enforce the lien directly against the property in an action against the owner of the property, if filed within 12 months from the time the lien becomes due. In Melton, supra, a complaint filed against an owner of property was ruled timely even though it was filed beyond 12 months from the time the lien became due, when the subcontractor had filed a claim in the contractor’s bankruptcy proceedings within the 12-month period, thereby satisfying the requirement of OCGA § 44-14-361.1 (a) (3) of commencing an action for the recovery of the claim. The court stated that the history of the statute “evinces a legislative intent to avoid the harsh result of a materialman being deprived of his lien through no fault of his own by virtue of the bankruptcy of the contractor.” Melton, supra at 591. Thus, “[a]n action to enforce the lien against the owner need not be instituted within the 12-month statutory period if a claim has been filed by the materialman in the contractor’s bankruptcy proceedings during that time.” Newton Lumber &c. v. Crumbley, 161 Ga. App. 741, 742 (290 SE2d 114) (1982). Similarly, the bankruptcy court, in In re Village Centers, supra, used the Melton holding to determine that when the materialman has properly perfected his claim by filing suit within the required time period and the bankruptcy of the contractor then intervenes beyond that time period, the materialman’s right to enforce the lien in an action against the property owner is not forfeited even though no judgment has been obtained against the contractor. Adair and Dodson, supra, did not involve a situation in which the intervening bankruptcy of the contractor prevented a diligent party from proceeding to judgment in a properly filed lawsuit. However, the Adair court did not acknowledge that there were needed exceptions to the 12-month limit on filing suit against the property owner and in fact held that when a subcontractor obtains a judgment in a properly filed suit against a contractor, the subcontractor can proceed to enforce his judgment in a suit against the property owner, even though such suit is instituted beyond the 12-month period. Based on the foregoing, we find that the trial court’s order granting summary judgment to appellees on the ground that the suit was not timely filed was in error.

Decided October 16, 1990.

Ray C. Smith, for appellant.

Notwithstanding our decision on the timeliness issue, we find no evidence in the record to indicate whether appellant properly filed a notice of suit at the time he filed his action against appellees pursuant to OCGA § 44-14-361.1 (a) (4). Although we reverse the trial court’s order granting summary judgment, we also remand for a determination of whether the notice requirement has been satisfied.

Judgment reversed and case remanded.

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

McCallar & Associates, C. James McCallar, Jr., for appellees.


author: McMurray, Presiding Judge.

text:
    A90A0786.
    PRIMO’S, INC. v. CLAYTON COMMON ASSOCIATES, LTD.
    (398 SE2d 231)
   McMurray, Presiding Judge.

Plaintiff Clayton Common Associates, Ltd., brought suit against Primo’s, Inc., Primo’s Partners, Ltd. and Dean O. Webb in the State Court of Gwinnett County. In its compliant, plaintiff alleged that on or about February 10, 1986, plaintiff, as landlord, entered into a written lease agreement with Magnetic Food Enterprises, Inc., as tenant, for the rental of certain premises in the Clayton Commons Shopping Center; that, thereafter, defendant Primo’s, Inc. purchased the assets and liabilities of Magnetic Food Enterprises, Inc. and succeeded to all of the rights and obligations of Magnetic Food Enterprises, Inc. as a tenant under the lease; that, on October 30, 1987, defendant Primo’s, Inc. assigned all of its “right, title, interest and obligations” under the lease to defendant Primo’s Partners, Ltd. pursuant to a written “assignment to lease”; that under the terms of the assignment, defendant Primo’s, Inc. remained liable for the performance of the lease in the event of default by defendant Primo’s Partners Ltd.; that defendant Dean 0. Webb, general partner of defendant Primo’s Partners, Ltd. personally guaranteed the partnership’s performance under the lease; that the lease was in default and the rent was in arrears and plaintiff made demand for payment of the rent upon all of the defendants; that no such payments were made; and that defendants were liable to plaintiff for rent, attorney fees and expenses of litigation.

A copy of the lease between plaintiff and Magnetic Food Enterprises, Inc. was attached to the complaint. It had an effective date of March 1, 1986, and a five-year term.

A copy of the “assignment of lease” was also attached to the complaint. It was signed by plaintiff, as “landlord,” defendant Primo’s, Inc., as “assignor,” defendant Primo’s Partners, Ltd., as “assignee,” and defendant Webb, as “guarantor.”

In pertinent part, the assignment provided: “WHEREAS, Landlord and Assignor’s predecessor in title and interest, Magnetic Food Enterprises, Inc., did execute that certain lease dated February 10, 1986 . . . and WHEREAS, Assignor did thereafter purchase and acquire all of the assets and liabilities of Magnetic Food Enterprises, Inc., and did succeed to all of the right, title, interest and obligations of Magnetic Food Enterprises, Inc. as Tenant under the Lease, and WHEREAS, Assignor wishes to assign his rights and obligations under the Lease to Assignee which Assignment requires Landlord’s consent, NOW THEREFORE, . . . [for good and valuable consideration], the parties agree to the Assignment of the Lease subject to the following terms and conditions: 1. Subject to the terms and conditions hereinafter provided, Assignee has read and understood the Lease Agreement and hereby agrees to assume all of Assignor’s duties and obligations under the Lease and agrees to attorn to Landlord. In consideration of Assignee’s assumption of all of Assignor’s duties and obligations under the Lease, Assignor hereby agrees to assign to Assignee all of his right, title and interest in and to the Lease. 2. In consideration of Assignee’s assumption of all of Assignor’s duties and obligations under the Lease, Landlord hereby consents to the Assignment to Assignee of all of Assignor’s right, title and interest in and to the Lease. 3. The Lease shall remain in full force and effect and Landlord and Assignor hereby ratify and approve the same. . . . 5. This assignment shall not in any way diminish the liability of Assignor in event of default by Assignee.”

Defendants answered the complaint separately, denying they were indebted to plaintiff. Additionally, defendant Primo’s, Inc. counterclaimed against plaintiff and cross-claimed against the other defendants separately.

Both plaintiff and defendant Primo’s, Inc. moved for summary judgment upon the main claim. The record contains three affidavits pertaining to that claim, to wit: The affidavits of Richard E. Tiede, Ferris M. Anthony and J. Alan Breus.

Tiede is plaintiff’s property manager. In his affidavit, he identified copies of the lease and the assignment of the lease attached to the complaint as true and correct copies. He testified that defendant Primo’s, Inc. and defendant Primo’s Partners, Ltd. consecutively leased plaintiff’s premises; that defendant Primo’s, Inc. leased plaintiff’s premises by assuming the lease of Magnetic Food Enterprises, Inc., a previous tenant; that, thereafter, defendant Primo’s, Inc. assigned its right, title and interest in the lease to defendant Primo’s Partners, Ltd.; that defendant Dean O. Webb personally guaranteed payment of the lease when it was assigned to defendant Primo’s Partners, Ltd.; and that, in mid-April 1988, defendant Primo’s Partners, Ltd. abandoned plaintiff’s premises and failed to make payments under the lease. Tiede further testified that plaintiff made demand upon all defendants for payment pursuant to the terms of the lease and assignment; that no such payments were made; and that, at that time, $46,776.71 plus attorney fees and expenses of litigation was due and owing under the lease.

Anthony is president of defendant Primo’s, Inc. In his affidavit, he testified that in late 1986 or early 1987 defendant Primo’s, Inc. operated a pizza restaurant and delivery unit on plaintiff’s premises; that, previously, the space was occupied by Frank Vardaros who, operating as Magnetic Food Enterprises, Inc., ran a pizza restaurant and delivery unit on the premises and, in fact, had become a limited licensee of defendant Primo’s, Inc.; that he learned that Vardaros had ceased or was about to cease operations at plaintiff’s premises and, therefore, he spoke with plaintiff about the possibility of operating a pizza unit in the space which Vardaros occupied; that defendant Primo’s, Inc. was apprehensive about operating a pizza restaurant and delivery unit upon premises where a previous pizza business failed; and that, therefore, defendant Primo’s, Inc. and plaintiff agreed that defendant Primo’s, Inc. would lease plaintiff’s premises on a month-to-month trial basis with the opportunity of negotiating a long-term lease in the future if the parties were mutually satisfied with the tenancy of defendant Primo’s, Inc. Anthony further testified that defendant Primo’s, Inc. did not purchase or acquire the assets of Magnetic Food Enterprises, Inc.; that defendant Primo’s, Inc. did not succeed to any rights or obligations under the lease between plaintiff and Magnetic Food Enterprises, Inc.; that no agent of defendant Primo’s, Inc. even saw the lease between plaintiff and Magnetic Food Enterprises, Inc. until it was served with the complaint; that defendant Primo’s, Inc. would never assume a lease it had not seen inasmuch as its attorney thoroughly reviews and negotiates every prospective lease; that during the latter part of 1987 defendant Primo’s, Inc. twice contacted plaintiff seeking a long-term lease covering the premises; that plaintiff indicated such a lease would be prepared; but that no such lease was ever executed by plaintiff and defendant Primo’s, Inc.

Anthony further testified that in September 1987 defendant Primo’s, Inc. notified plaintiff that it intended to sell the pizza unit to defendant Webb or some entity with which he was associated; that any lease would have to be negotiated between plaintiff and the new owner; and that defendant Primo’s, Inc. was not requiring the new owner to operate the business at plaintiff’s premises. Regarding the language of the assignment, Anthony testified (1) that at the closing of the sale of the pizza unit, counsel for defendant Webb told him that “such document basically was intended to preclude Primo’s, Inc. from ever denying defendant Webb’s right to occupy the space . . . [and] that, in the event that Mr. Webb or his company decided to cease operations . . . the landlord would like Primo’s, Inc. to consider resuming the relationship and arrangement that it previously had maintained with the landlord”; and (2) that he understood the assignment would allow defendant Primo’s, Inc. to return to plaintiff’s premises as a tenant at will. With regard to the reference to Magnetic Food Enterprises, Inc., Mr. Anthony testified that he only intended to make it clear that Magnetic Food Enterprises, Inc. would have no right to claim plaintiff’s premises.

Anthony continued his affidavit by reciting that in April 1988, defendant Webb abandoned the premises; and that, on May 30, 1988, he advised plaintiff that it should take legal action against defendants Webb and Primo’s Partners, Ltd. Anthony concluded by reiterating that defendant Primo’s, Inc. “never saw, negotiated or signed any lease with the landlord.”

Breus is the vice-president of B&R No. 3, Ltd., a general partner of plaintiff. He attached the original assignment of lease and a copy of the lease between plaintiff and Magnetic Food Enterprises, Inc. to his affidavit. He testified that he executed the Assignment of Lease on behalf of plaintiff; that it was plaintiff’s understanding that defendant Primo’s, Inc. assumed all the right, title, interest and obligations of Magnetic Food Enterprises, Inc. in the lease; that plaintiff never agreed to allow defendant Primo’s, Inc. to rent its premises as a tenant at will; and that the assignment of the lease by defendant Primo’s, Inc. did not diminish its obligations under the lease.

Based on the foregoing evidence, the trial court granted partial summary judgment to plaintiff against all of the defendants, ruling that plaintiff was entitled to recover rent (to the date of the order) in the amount of $27,721.61 plus interest and attorney fees. No ruling was made upon the summary judgment motion filed by defendant Primo’s, Inc.

Defendant Primo’s, Inc. appeals, asserting the trial court erred in granting plaintiff’s motion for summary judgment, in part, and in denying its motion for summary judgment. Held:

1. Defendant Primo’s, Inc. points out correctly that an assignment of the lease from Magnetic Food Enterprises, Inc. to defendant Primo’s, Inc. does not appear in the record. The absence of such an assignment, however, is not fatal to plaintiff’s claim. Why? Because the doctrine of equitable estoppel or estoppel in pais prevents defendant Primo’s, Inc. from assuming an inconsistent position to the detriment of plaintiff. Brown v. Scales, 109 Ga. App. 138, 139 (135 SE2d 525).

Defendant Primo’s, Inc. represented in the assignment of lease to defendant Primo’s Partners, Ltd. that it purchased the assets of Magnetic Food Enterprises, Inc. and succeeded Magnetic Food Enterprises, Inc. as a tenant under the lease. Plaintiff agreed to the assignment of the lease from defendant Primo’s, Inc. to defendant Primo’s Partners, Ltd. based on that representation. Thus, defendant Primo’s, Inc. is estopped from asserting that it did not succeed Magnetic Food Enterprises, Inc. as a tenant under the lease. Brown v. Scales, supra. Although the doctrine of equitable estoppel cannot create or convey title, it is not being so used in this case. See Brunswick Pulp &c. Co. v. Yeomans, 258 Ga. 545, 546 (372 SE2d 217).

The trial court did not err in granting partial summary judgment to plaintiff against all of the defendants.

Decided September 28, 1990

Rehearing denied October 17, 1990.

Charles Gallagher, for appellant.

Sinowski & Jones, Mark V. Clark, McRae, Lambrecht & Wagner, Benjamin H. Pruett, C. David Johnston, for appellee.

2. Inasmuch as the trial court did not rule upon defendant Primo’s, Inc.’s motion for summary judgment, we cannot consider the contention that the trial court erred in failing to grant the summary judgment motion. West v. Life Ins. Co. of Virginia, 142 Ga. App. 877, 879 (2) (237 SE2d 239).

3. Citing Nickerson v. Candler Building, 156 Ga. App. 396, 399 (5) (274 SE2d 582), defendant Primo’s, Inc. contends the trial court erred in ruling that plaintiff was entitled to recover rent which accrued between the time the complaint was filed and the partial summary judgment order was entered. This contention is without merit. In Nickerson, a default judgment was entered against the lessee and this Court held that the landlord could not recover rent which accrued after the filing of the complaint in the absence of subsequent amendments to the complaint. Nickerson v. Candler Building, 156 Ga. App. 396, 400, supra. Compare Price v. Age, Ltd., 194 Ga. App. 141, 144 (3) (390 SE2d 242). In the case sub judice, on the other hand, partial summary judgment was entered against the defendants. In ruling upon plaintiff’s summary judgment motion, it was incumbent upon the trial court to make an order specifying “the extent to which the amount of damages ... is not in controversy.” OCGA § 9-11-56 (d). This is precisely what the court did.

4. The remaining enumerations of error are without merit.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A90A1461.
    SOUTHERN GENERAL INSURANCE COMPANY v. KEY et al.
    (398 SE2d 237)
   Sognier, Judge.

Southern General Insurance Company filed a declaratory judgment action against Ben W. Key, Jr., Henry Prather, and Talbot State Bank, seeking a determination of its liability under two fire insurance contracts. Cross motions for summary judgment were filed by all parties except Prather. The trial court granted summary judgment to Key and the bank against Southern General, denied summary judgment to Southern General against Key and the bank, and granted summary judgment to Southern General against Prather. Southern General brings this appeal from the trial court’s order denying its motions and granting summary judgment in favor of Key and the bank. Prather is not involved in this appeal.

The record reveals that in 1982, Frank Steed, Sr. executed a note and security deed to appellee bank in connection with the refinancing of a house in Manchester, Georgia, owned by Steed and occupied by a tenant. Several months later, a second security deed was executed by Steed to appellee Key. Steed died on February 28,1985. On February 21,1986, appellant issued a fire insurance policy on the property upon the application of Key, which policy was paid for by Key and renewed on March 7, 1987 for a one year term. The policy lists both appellees as mortgagees and Steed as the insured. On May 16, 1987, another fire policy on the property was issued by appellant upon the application of Prather acting on behalf of Steed’s estate, listing Steed c/o Prather as the insured and only the bank as mortgagee. On January 21, 1988, the insured property was totally destroyed by fire. Both Key and the bank made claims upon appellant as mortgagees listed in the loss payable clauses of the policies. Appellant refused to honor the claims, instead filing this action.

It is uncontroverted that neither appellees nor appellant had knowledge of Steed’s death when the policies in question were applied for and issued.

Appellant contends the trial court erred by granting summary judgment to appellees and denying its own motions for summary judgment because Steed, having died earlier, lacked the capacity to enter into a valid contract, thereby rendering the policies issued void ab initio. We do not agree.

We first address the propriety of the trial court’s denial of appellant’s motions for summary judgment against appellees. Although appellant’s argument that the contract was a nullity is ingenious, we find it fallacious because Steed, while the nominal insured, was not the contracting party for either policy. Rather, the first policy was purchased by Key, and the second by Prather. Appellant admits that Key had an insurable interest in the property as second mortgagee. At the time he applied for the second policy, Prather was not the legally appointed administrator of Steed’s estate, but he did apply on behalf of and to protect the interest of the estate, which had a cognizable interest in the property. Nothing in the record evidences lack of capacity on the part of either Key or Prather, and we must accordingly presume that they were competent to contract. See generally Gulf Life Ins. Co. v. Wilson, 123 Ga. App. 631, 632-633 (2) (181 SE2d 914) (1971). Consequently, the contract was not void ab initio, as claimed by appellant.

Having decided the contract was valid, we must decide whether the trial court erred by granting summary judgment to appellees.

Decided October 5, 1990

Rehearing denied October 17, 1990

Mozley, Finlayson & Loggins, Robert M. Finlayson II, Richard D. Hall, for appellant.

Johnnie L. Caldwell, Jr., Owen J. Adams, Jerry W. Loftin, for appellees. Henry Prather, pro se.

Both policies contained what is commonly referred to as “New York standard” or “union” mortgage clauses, which provide that the mortgagee’s right to recover will not be affected or invalidated by any act or omission of the mortgagor. Where the loss payable clause contains such language, Georgia law deems there to be a separate contract between the mortgagee and the insurer unaffected by circumstances precluding recovery by the mortgagor. Decatur Fed. Savings &c. Assn. v. York Ins. Co., 147 Ga. App. 797, 798 (3) (250 SE2d 524) (1978). Recovery by Prather on behalf of the estate is not at issue in this appeal, but even assuming that the estate could not recover, and regardless of whether Prather’s actions on behalf of the estate were proper, because the policies are not nullities the New York standard clauses entitle both the bank and Key to recovery under the terms of their respective policies, see Cherokee Ins. Co. v. First Nat. Bank, 181 Ga. App. 146 (351 SE2d 473) (1986), and accordingly both appellees were entitled to recover the proceeds. The trial court did not err by granting summary judgment to appellees. Id. at 147-148.

Judgment affirmed.

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


text:
    A90A0893.
    EDMUNDS et al. v. COPELAND.
    (398 SE2d 280)
   Cooper, Judge.

Appellants Jean and James Edmunds appeal from the grant of appellee’s motion for summary judgment in a slip and fall case. The complaint alleged that appellee was negligent in maintaining the walkway to his front door and in failing to warn of the walkway’s slick condition.

Viewing the evidence in a light most favorable to appellants, the record shows that Mrs. Edmunds, an insurance salesperson, attempted to make a sales call at appellee’s residence. Although appellee could not remember doing so, it appears that appellee had completed a card expressing interest in insurance which was obtained by Mrs. Edmunds’ employer and used to identify potential customers. On the day of the incident, Mrs. Edmunds went to appellee’s home without an appointment. Appellee was in the backyard when Mrs. Edmunds arrived. Mrs. Edmunds testified that she identified herself and explained the purpose of her visit. Appellee, an elderly man, testified he was hard of hearing but thought she said something about Medicare and for that reason asked her to go to the front door because the back gate was locked. Mrs. Edmunds walked across the lawn to the front walkway where she fell. No foreign substance was found in the area or on her shoes; however, appellee testified that over the years he painted the walkway. The record contains an affidavit and deposition of a mechanical engineer retained by appellants which cited various publications, including a Georgia DOT manual, a U. S. Army manual and a gardening handbook, all of which describe an alternative method of finishing concrete sidewalks. Although the expert concluded that had the walkway been “broom finished” it would have been less slippery, he admitted that the walkway did not violate any standard applicable to residences. The expert also concluded that the paint increased the probability of a slip on foreign material attached to someone’s shoe.

In his motion for summary judgment, appellee contended Mrs. Edmunds was a licensee to which he owed a duty only in the event of willful or wanton negligence. If, however, she were deemed an invitee, appellee contended he was also not liable for ordinary negligence.

“ ‘A licensee is a person who: (1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.’ [Cit.] A visitor is the invitee of the owner if his presence on the premises promotes the mutual interests of the owner and the visitor. [Cit.] In the instant case, [Mrs. Edmunds’] decision to stop by [appellee’s] residence without first calling to make a definite appointment served only [Mrs. Edmunds’] convenience . . . .” Planned Community Svcs. v. Spielman, 187 Ga. App. 703, 705 (371 SE2d 193) (1988). Appellants argue that based upon appellee’s “invitation” to the front door Mrs. Edmunds should be afforded the status of an invitee. OCGA § 51-3-1 defines an invitee as one who is induced by an express or implied invitation to enter the premises of another. At the time appellee instructed Mrs. Edmunds to go to the front of the house, she had already entered the property, and when Mrs. Edmunds was injured, there was no business relationship between the parties, such that they shared a mutuality of interest. Under the circumstances present in this case, even though the parties presented differing accounts of what was said at the back fence, Mrs. Edmunds was a licensee. See Atkins v. Tri-Cities Steel, 166 Ga. App. 349, 350 (304 SE2d 409) (1983).

Decided October 17, 1990.

S. Phillip Brown, for appellants.

Chambless, Higdon & Carson, Marc T. Treadwell, for appellee.

“ ‘The owner of the premises is liable to a licensee only for willful or wanton injury.’ [Cits.] ‘The codified standard “wilful or wanton” imports deliberate acts or omissions, or . . . that which discloses “an inference of conscious indifference to the consequences.” ’ [Cit.] The evidence in the instant case in no way supports even an inference of wilful or wanton conduct on the part of the [appellee], and the trial court [properly] granted summary judgment for the [appellee].” Planned Community Svcs., supra at 705.

Even if the conversation at the back fence is viewed as raising genuine issues of material fact as to whether or not Mrs. Edmunds was an invitee, we conclude that the trial court was, nevertheless, correct in granting summary judgment because the evidence does not support a finding of ordinary negligence on appellee’s part. Where an individual alleges he fell because of slippery wax, oil or other finish placed on a floor, he must, “at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.” Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). Although the expert testified that a “broom finish” would have been less slippery based on the sources cited above, he could point to no standard requiring a homeowner to have a particular type of walkway finish, nor would he opine as to what a safe walking surface standard might be. His testimony with regard to the perils of paint described the probable consequence of someone walking on a painted walkway and slipping on a substance attached to his shoe or present on the walkway. However, there was no evidence of any such foreign substances. We conclude, therefore, that summary judgment was properly granted.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A90A1340.
    RIMMER et al. v. THE STATE.
    (398 SE2d 282)
   Pope, Judge.

Defendants Larry Clayton Rimmer and Dana Joy Rimmer, husband and wife, were jointly tried and convicted of possession of marijuana and trafficking in marijuana and have filed separate enumerations of error on appeal. We affirm.

1. Both defendants argue the trial court erred in denying their motions to suppress evidence discovered in their home on the ground the search warrant was legally deficient. The affidavit submitted in support of the application for a search warrant stated that, by helicopter, a trail could be seen leading from defendants’ house to four separate patches of growing marijuana. It also stated that a reliable source provided information that black plastic buckets of the same type discovered in the marijuana patches were under the house. At the hearing on the motion to suppress, the officer who signed the affidavit testified the informant was the defendants’ next-door neighbor. Defendants’ neighbor testified he was not home when the marijuana was discovered and he gave no information to the authorities. Defendants argue that having shown the affidavit contained false material, the search warrant should be held invalid and the evidence obtained as a result of the search should be excluded. If an affidavit is insufficient to establish probable cause once its false material is set aside, then evidence obtained by means of a search warrant issued in reliance on the affidavit is inadmissible. See Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987) and cases cited therein. However, where the remaining information is sufficient to show probable cause, the search warrant is valid. See Williams v. State, 232 Ga. 213 (1) (205 SE2d 859) (1974); Summerville v. State, 226 Ga. 854 (1) (178 SE2d 162) (1970). Thus, even if the factfinder found irreconcilable conflict between the neighbor’s testimony and the assertions contained in the affidavit and accepted the neighbor’s testimony instead of the affiant’s, the statement contained in the affidavit that a trail led from the house to the patches of growing marijuana was sufficient to show probable cause to support the warrant. See Brooks v. State, 140 Ga. App. 371 (231 SE2d 138) (1976).

That defendants presented evidence at the hearing on the motion to suppress showing other trails existed in the area where the marijuana was found does not invalidate the search warrant. First, we note no evidence was presented that any of the other trails led to the patches of marijuana. Moreover, what is at issue in reviewing the decision of a judge to issue a search warrant is whether the information supplied to him was sufficient to support the warrant. “An appellate court should . . . avoid after the fact, de novo scrutiny of the sufficiency of the affidavit.” (Citation and punctuation omitted.) Hayes v. State, 182 Ga. App. 319, 320 (355 SE2d 700) (1987). Pursuant to Brooks, supra, sufficient evidence was presented to support the issuance of the warrant.

2. The son of defendant Larry Clayton Rimmer lived with defendants in the house in which four bags containing just under three ounces of marijuana were found. The son testified the marijuana contained in these four bags belonged to him and that he kept the contraband without the consent of his father and step-mother. After the evidence was closed, but before instructions had been given to the jury, the son was arrested and charged with possession of marijuana based on his testimony. Defendant Larry Clayton Rimmer argues the trial court erred in denying his motion to reopen the evidence to allow him to present evidence that the son had been charged with possession of the marijuana found in bags in the house. While the trial court may, within its discretion, reopen the case to allow additional evidence (see Traylor v. State, 163 Ga. App. 473 (2) (294 SE2d 707) (1982)), the court here did not abuse its discretion in refusing to reopen the case. The witness’ admission of possession was already before the jury. That the witness was charged with possession of the same contraband defendant was charged with possessing is not inconsistent with defendant’s guilt as a joint possessor of the contraband.

3. The total weight of the marijuana found in four separate bags in the house was just under three ounces, therefore resulting in the charge for possession of more than one ounce of marijuana, a felony. Defendant Larry Clayton Rimmer argues the trial court erred in denying his request to charge the jury on the lesser included misdemeanor offense of possession of less than one ounce of marijuana because, he argues, the jury could have found he was in possession of fewer than all four of the bags of contraband found in the house. We disagree that defendant was entitled to such a charge. The State presented evidence from which the jury could find defendant was guilty of possession, at least jointly, of all the contraband found in the house and defendant presented evidence, by his denial, that he was in possession of none of the contraband found in the house. However, no evidence was presented that defendant was in possession of only some, but not all, the contraband found in the house.

4. The charge on constructive possession given by the trial court was a correct statement of the law and was adequate. Therefore, the trial court did not err in refusing to charge the specific language requested by defendant Dana Joy Rimmer.

5. Defendant Dana Joy Rimmer argues the trial court erred in denying her motion to sever the trial of her case from that of her co-defendant husband. “Since the grant or denial of a motion to sever is left in the discretion of the trial court, its ruling will only be reversed for an abuse of discretion. . . . The burden is on the defendant requesting the severance to ‘make a clear showing of prejudice. . . .’ [Cits.]” Baker v. State, 238 Ga. 389, 391 (233 SE2d 347) (1977). Defendant husband voluntarily testified at trial and therefore defendant wife was not deprived of the opportunity to cross-examine him or otherwise present evidence to distinguish her culpability from that of her husband. No abuse of discretion was shown and we will not reverse the trial court’s denial of the motion to sever.

Decided October 17, 1990.

Gammon & Anderson, W. Wright Gammon, Jr., Mundy & Gammage, George E. Mundy, for appellants.

William A. Foster III, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.

6. Finally, defendant Dana Joy Rimmer argues the evidence was insufficient to support the conviction. The evidence showed a “beaten path” from deféndants’ yard led to four patches of growing marijuana. Another patch was directly across the street from defendants’ house. The marijuana cut from these patches weighed over one hundred pounds. Defendants, husband and wife, worked together in a landscaping business and worked with plants grown in black plastic buckets. Buckets of this type were found near the growing marijuana plants and in the crawl space beneath defendants’ house. Four bags containing a total of just under three ounces of marijuana were found in defendants’ house and two leaves of a marijuana plant were found drying in the attic above defendants’ carport. “The appellate court views the evidence in a light most favorable to the jury’s verdict after it has been rendered. [Cits.] Under the facts of this case, we are satisfied that any rational trier of fact reasonably could have found proof of the essential elements of the [crimes] charged beyond a reasonable doubt.” Laws v. State, 153 Ga. App. 166, 167 (1) (264 SE2d 700) (1980).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A1391.
    ANTHONY v. THE STATE.
    (398 SE2d 580)
   Pope, Judge.

Defendant Gary Anthony appeals his conviction for possession of cocaine with intent to distribute. We affirm.

1. Defendant first argues the trial court erred in denying his motion to suppress evidence of 6.7 grams of cocaine found on defendant’s person when he was arrested on the ground the officer had insufficient capse to arrest him. The record shows defendant was arrested because he scuffled with the police officer when the officer sought to frisk him during an investigatory stop. Once defendant was properly under arrest the search of defendant’s person, made incident to the arrest, was not in any way improper.

The initial investigatory stop of the defendant was also not illegal under the circumstances. At the suppression hearing the arresting officer testified he had been gathering information for several weeks about a brown pick-up truck which, according to informants, was being used to transport drugs from one end of Sells Street in Atlanta to the other end. On the day of defendant’s arrest an informant, who had proven reliable because his information had resulted in three to four arrests, identified the truck and its driver to the officer. About an hour and a half later the officer saw the truck driving down Sells Street. He pulled the truck over for the purpose of questioning the driver and investigating the suspicions that were based on the informant’s statements. As defendant got out of the truck and walked toward the officer he reached into his back pocket to retrieve his driver’s license and as he moved the officer observed a paper bag sticking out of the waist of defendant’s pants as well as a bulge in his pants. The officer had been informed that the driver of the truck which delivered drugs was heavily armed and the officer attempted to pat-down defendant as a safety precaution before examining the driver’s license or otherwise conducting his investigation. It was during the pat-down that defendant commenced to struggle with and resist the officer, who then placed defendant under arrest. The investigatory stop of the defendant was not illegal because it was based on specific and articulable facts which raised a reasonable ground for suspicion. “The investigatory stop of the defendant was not an illegal arrest. It was authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) [(1968)], and its progeny. Because defendant had been identified as a possible suspect [in the distribution of illegal drugs] there was sufficient articulable suspicion for the [officer] to temporarily detain defendant and question him.” Clinkscale v. State, 158 Ga. App. 597, 598 (281 SE2d 341) (1981). The subsequent arrest and search were proper because they were made only after reason for the arrest arose during the legal investigative stop. See Evans v. State, 162 Ga. App. 78 (290 SE2d 176) (1982); Stiggers v. State, 151 Ga. App. 546 (260 SE2d 413) (1979). The trial court did not err in denying defendant’s motion to suppress evidence.

2. Neither did the trial court err in denying defendant’s motions for mistrial brought on the ground the state impermissibly placed defendant’s character in evidence. When explaining why he attempted to pat down the defendant before proceeding with his investigation, the officer testified he saw the bulge in defendant’s pants and was concerned about weapons because he “had been advised when [defendant] moves the narcotics, goes for the Miami Boys, . . . there [are] usually always weapons, automatic or semi-automatic.” We disagree that the mention of defendant’s involvement with the “Miami Boys” improperly placed his character into evidence because the testimony did no more than associate defendant with the very crime for which he was charged.

During cross-examination defendant’s attorney repeatedly asked the officer whether he was looking for anyone else involved in drug activity on the day defendant was arrested. After answering at least twice that while he was on patrol he was looking for anyone involved in illegal activity, he finally responded: “I was looking for individuals that were in part of a gang down in the other end familiar with the Miami Boys.” This testimony did not require the grant of mistrial because it did not in any way address the issue of defendant’s character and, moreover, it was made in direct response to defendant’s question and was not, as defendant argues, unresponsive to his question.

Decided October 17, 1990.

Leigh B. Finlayson, Mary E. Erickson, for appellant.

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

3. Defendant argues the mandatory life sentence imposed by OCGA § 16-13-30 (d), for a second or subsequent conviction for possession of a controlled substance with intent to distribute, is unconstitutional as cruel or unusual punishment. While this is an enumeration of error over which the Georgia Supreme Court has exclusive jurisdiction, we need not transfer the appeal for lack of jurisdiction because defendant did not raise this constitutional issue at trial and therefore forfeited his right to raise the issue on appeal. Señase v. State, 258 Ga. 592 (372 SE2d 813) (1988).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    A90A1594.
    WILLIAMS v. THE STATE.
    (398 SE2d 285)
   Deen, Presiding Judge.

The appellant, Cosby Luke Williams, was convicted of obstruction of an officer and two counts of aggravated assault. The issue in this appeal is whether the trial court erred in allowing the prosecutor to cross-examine Williams about his two arrests in another county that occurred after his arrest for which he was on trial.

Defense counsel asked Williams on direct examination whether he had had any other dealings with the Sheriff’s Office in that county either before or after his arrest in this case. Williams responded that he had not, and that he had never been on trial. On cross-examination, over defense counsel’s objection, the prosecutor was allowed to ask Williams about the two subsequent arrests in another county. This was error.

The prosecutor’s questions about Williams’ two arrests in another county subsequent to the incident in question would not serve to disprove or impeach Williams’ testimony about having had no further trouble in the county where he was being prosecuted. See Thomas v. State, 178 Ga. App. 674 (344 SE2d 496) (1986). Also, the testimony regarding the two arrests was not competent evidence of general bad character; proof of conviction, not accusation, is necessary for that. Id.; see also Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988).

Decided October 17, 1990.

Walter S. Scott, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

Judgment reversed.

Pope and Beasley, JJ., concur.


author: Birdsong, Judge.

text:
    A90A1692.
    In the Interest of C. T., a child.
    (398 SE2d 286)
   Birdsong, Judge.

This is an appeal by C. T., a child of age 15, from a judgment of disposition of the juvenile court. A petition was filed averring appellant committed armed robbery. Appellant admitted the charge, was adjudicated delinquent, and was held pending disposition pursuant to OCGA § 15-11-37 (designated felony act). Subsequently, C. T. was released for a 90-day trial period in probation status. At the final disposition hearing, the juvenile court judge placed C. T. in the custody of the Division of Youth Services for an initial period of five years, and committed her into restrictive custody for a specified period in a Youth Development Center to be followed by a period of intensive supervision. Held:

1. Appellant asserts the trial court violated appellant’s Sixth Amendment right to assistance of counsel and her right to due process by refusing to allow her attorney final argument. The record reflects appellant did not make any timely objection to the ruling based on constitutional grounds. By failing to raise these constitutional issues at the hearing and by failing to obtain a ruling thereon, appellant has waived them; therefore, these issues are not preserved for appeal. Meders v. State, 260 Ga. 49, 54 (2) (b) (389 SE2d 320); Allen v. Montgomery Ward & Co., 186 Ga. App. 337 (2) (367 SE2d 120). Moreover, the record reflects that before calling witnesses, appellant’s counsel made a lengthy argument setting out in detail why appellant should not be placed in restrictive custody. The court has inherent power to. supervise the course of the trial (Johnson v. State, 254 Ga. 591 (11) (331 SE2d 578)) and under the circumstances, did not abuse its discretion in declining to allow appellant further argument after her witnesses had testified. Further, appellant has made no showing on appeal of any new matter which she would have presented had final argument been allowed. Harm as well as error must be shown to authorize reversal. Robinson v. State, 229 Ga. 14, 15 (1) (189 SE2d 53).

2. Appellant asserts the trial court’s disposition is contrary to the weight of the evidence. On appeal the evidence must be viewed in a light most favorable to the findings and judgment. See generally Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737); Williams v. Perry, 187 Ga. App. 586 (1) (370 SE2d 836); In the Interest of C. D. L., 184 Ga. App. 412 (361 SE2d 527). An appellate court determines sufficiency of the evidence; it does not weigh the evidence or determine witness credibility. In the Interest of E. P. N., 193 Ga. App. 742, 748 (388 SE2d 903).

Appellant made an informed admission both on the record and in writing, concurred in by her natural father who also was present before the referee, that she committed an offense of armed robbery on or about December 6, 1989, as averred in the petition. The record contains a written “Admission by Juvenile” which was duly signed by appellant, her father, and her attorney. This written admission reflects, inter alia, that appellant understands “that this admission or confession is the same as pleading ‘guilty’ to these charges. I am willing to be found delinquent without hearing the evidence from witnesses and without a trial or formal hearing. I understand that the [c]ourt can make whatever order or disposition it finds necessary in my case and that I might even be placed in an institution for delinquent children.” The transcript also reflects that the juvenile was advised, inter alia as follows: “THE COURT: You understand also, that I can make whatever decision, I feel that’s best in your interest? I can lock you up here in juvenile court? Or place you on probation? Or could commit you to the State for placement in a training school? Do you understand these things? THE JUVENILE: Yes.”

“Where a juvenile is charged with an offense which for an adult would be a crime, the standard of proof in the lower court is ‘beyond a reasonable doubt.’ ” In the Interest of C. D. L., supra at 412. In a juvenile proceeding, a formal admission of guilt by a juvenile that is on its face knowingly, voluntarily and intelligently made is similar in effect to a plea of guilty. Thus, appellant’s knowing, voluntary, and intelligent admission of guilt of the crime of armed robbery, as that offense was averred in the petition, was sufficient to meet the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) for purposes of establishing that appellant was guilty of committing the offense as averred; and as crafted, the “Admission by Juvenile” also constituted in effect an admission in judicio of delinquency.

A designated felony act within the meaning of OCGA § 15-11-37 (a) (2) (B) includes, inter alia, “armed robbery, if done by a juvenile 13 or more years of age.” Regarding the issue of whether a juvenile should be placed in restrictive custody, OCGA § 15-11-37 (b) pertinently provides: “Where a juvenile is found to have committed a designated felony act, the order of disposition . . . shall include a finding based on a preponderance of the evidence as to whether, for the purposes of this Code section, the juvenile does or does not require restrictive custody. . . .” (Emphasis supplied.) The evidence of record is sufficient to meet this evidentiary standard of proof.

In addition to the appellant’s informed admission of committing the crime of armed robbery, the record establishes she struck the victim in the face while her co-accomplice accosted the victim at pistol point. The victim testified regarding the continuing adverse emotional impact that the offense had upon her. A supervisor of a caseworker section testified that while on probation appellant reported only four or five of the required nine reporting times, but recommended that appellant be committed to the Department of Human Resources under non-restrictive custody. A probation officer had recommended before appellant’s trial release on probation that she be committed on a non-restrictive basis. This probation officer also testified that although she believed appellant understood the seriousness of her acts, she did not observe appellant exhibit any “remorseful feelings” when she talked with her. The record further establishes that appellant did not adequately comply with several of the more substantial probation provisions during her trial release, although she did not commit any crimes during that time period. Viewing the record in its totality, the evidence is sufficient to sustain the final disposition order and judgment of the juvenile judge.

3. Appellant asserts the trial court erred in failing to make specific findings of fact in support of its ruling.

The State argues there is no requirement, pursuant to OCGA § 15-11-37, that the findings of fact contain a reference to each item listed in OCGA § 15-11-37 (c), but rather the statute only requires the court consider each item. However, OCGA § 15-11-37 (b) expressly provides that the order of disposition shall include a finding whether the juvenile requires restrictive custody, “in connection with which the court shall make specific written findings of fact as to each of the elements set forth in paragraphs (1) through (5) of subsection (c) of this Code section as related to the particular juvenile.” (Emphasis supplied.) Thus, it is statutorily required that the court not merely consider but also make specific written findings of fact, as related to C. T., regarding the following “elements:” “(1) The needs and best interests of the juvenile; (2) The record and background of the juvenile; (3) The nature and circumstances of the offense, including whether any injury [physical of emotional] involved was inflicted by the juvenile or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.” (Emphasis supplied.) OCGA § 15-11-37 (c) (l)-(5). The extent and depth of analysis to which each of these “elements” must be subjected is in large measure within the sound discretion of the court. It is required, as a statutory minimum, that each of these “elements” must be specifically addressed in writing. These findings not only provide a meaningful legal road map for the lower court in exercising discretion in effecting a fundamentally fair case disposition, but also “assist the appellate court in its review of the merits of an appeal.” See Chambless Ford Tractor v. McGlaun Farms, 169 Ga. App. 672, 674 (1) (314 SE2d 689). “[T]he findings should be sufficiently'inclusive to afford the means for an intelligent review.” Id.

Although juvenile disposition proceedings are not analogous to adult proceedings in many significant respects, nevertheless “due process must be afforded.” In re B. C., 169 Ga. App. 200, 201 (311 SE2d 857). While procedural due process of law for juveniles in juvenile court includes notice and hearing, “[t]he constitutions do not afford special rights to juveniles. Their special rights are created by statute.” Chapman v. State, 259 Ga. 592, 593 (385 SE2d 661). Two of the primary purposes for amending the Juvenile Court Code of Georgia a decade ago was “to provide for disposition of juveniles who commit designated felony acts” and “to provide for practice, procedure, and other matters relative to the foregoing. . . .” (Emphasis supplied.) Ga. L. 1980, p. 1013. Thus, the legislature saw fit to provide special rights by promulgating an explicit procedure for the making of certain specific written findings of fact and for the judicial consideration of each of the elements so found. The purpose of this procedure was to ensure that a determination as to restrictive custody, regarding a particular juvenile, would not be accomplished in an arbitrary manner, but only with fundamental fairness after the required statutory findings had been made and duly considered by the court. See generally OCGA § 15-11-37 (b) & (c). Moreover, our Supreme Court has held an appellate court cannot condone a “violation of the statutory scheme set up by our legislature. . . .” In re T. E. D., 169 Ga. App. 401, 403 (312 SE2d 864). In the event of such a violation, an “appellate court will ordinarily vacate the judgment and remand the action to the trial court for the preparation of appropriate findings.” See generally Chambless, supra at 674.

We need not determine whether it is sufficient only to comply substantially with the expressly mandated procedures of OCGA § 15-11-37 (b) and (c) (compare OCGA § 1-3-1 (c) with Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108)), as the court has failed to comply, even substantially, therewith. While the trial court may couch findings in conclusory terms, the findings in this case are devoid of “specific written findings of fact” regarding the important element of the “record” of the juvenile. Although some background information concerning the juvenile is provided, the judgment and disposition are silent as to C. T.’s “record.” Specifically, no findings were made regarding her past record of no criminal violations and her record during probation in regard to law abiding conduct. Also, the element of the “physical condition of the victim” (both before and as a result of the designated felony act) has not been reduced to a “specific written finding of fact.” The purpose of the specific findings is to specify in writing the essential elements involved in the case of a particular juvenile and thereby assist the lower court in its consideration of all of the mandated statutory elements — both those supporting and those mitigating against a particular case disposition. By complying with statutory procedure, the lower court will have the documented benefit of those elements relevant to its balancing process, and an appellate court will have documented assistance in determining whether a breach of discretion may have occurred in a particular case.

Decided October 17, 1990.

Vernon S. Pitts, Avis K. Hornsby, for appellant.

Lewis R. Slaton, District Attorney, Lyn K. Armstrong, Joseph J. Drolet, William C. Akins, Richard E. Hicks, Assistant District Attorneys, for appellee.

Accordingly, judgment must be vacated and the case remanded for compliance with the statutory requirements for specific written findings of fact as to each of the elements set forth in OCGA § 15-11-37 (c) (l)-(5). The court shall consider each specific written finding and shall thereafter enter an appropriate judgment and disposition.

Judgment vacated and case remanded with direction.

Banke, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A90A1818.
    JOYNER v. JOYNER.
    (398 SE2d 294)
   Beasley, Judge.

Appellant Jay Joyner filed a petition seeking to modify his and appellee’s divorce decree to change visitation rights. Appellee filed a counterclaim for $6,200 arrearage in child support payments and agreeing to the visitation modification. An order was entered modifying visitation and reserving for trial the past due child support.

Decided October 17, 1990.

Grady K. Reddick, for appellant.

George W. Fryhofer, for appellee.

Appellee moved for summary judgment on this issue, which was granted. Appellant filed a direct appeal.

1. Child support issues being among those encompassed within OCGA § 5-6-35 (a) (2), and no application for appeal as required by OCGA § 5-6-35 (b) & (d) having been filed, this case must be dismissed. Russo v. Manning, 252 Ga. 155 (312 SE2d 319) (1984); Brandenburg v. Brandenburg, 175 Ga. App. 20 (332 SE2d 664) (1985).

2. Appellee filed a motion seeking imposition of 10 percent damages pursuant to OCGA § 5-6-6. The motion must be denied, not on its merits, but because the statute provides for such damages “upon any judgment. . . which has been affirmed.” No provision is made for imposing such damages when the appeal is dismissed. Radford v. IPD Printing &c., 184 Ga. App. 64 (2) (360 SE2d 656) (1987).

Appeal dismissed.

Been, P. J., and Pope, J., concur.


text:
    A90A2011.
    BROOKHILL MANAGEMENT CORPORATION v. SHAH.
    (398 SE2d 290)
   Deen, Presiding Judge.

On May 7, 1986, appellee Navin B. Shah d/b/a Royal Cleaners signed an agreement with Spalding Woods Village Associates, Inc., and its agent Kern & Company, Inc., to lease a space in a shopping center for a three-year term from December 1, 1986, through October 31, 1989. This lease contained a provision allowing Shah the option to renew for two additional three-year terms, which could be exercised upon written notice to the landlord six months prior to the expiration of the term. Shah sold his dry-cleaning business to Mrs. Saroj J. Patel and, in June of 1988, assigned the lease to her. On June 18, 1989, four and one-half months before the lease was due to expire, a letter signed by Jay C. Patel as secretary of So-Hum, Inc., was sent to Kern & Company seeking to renew the lease for another three-year term. The letter was forwarded to appellant Brookhill Management Corporation, as agent for Spalding Woods Village Associates, and by a letter dated June 28, 1989, to Jay C. Patel, Brookhill renewed the option extension for the premises to So-Hum, Inc., as tenant.

After So-Hum, Inc., was continually late on the lease payments and Saroj J. Patel apparently defaulted on the purchase of the business, Shah reentered possession of the premises in February of 1990 and repossessed the contents under the purchase agreement between Mrs. Patel and himself. Shah took over operation of the business but refused to pay the rent, advising Brookhill that he did not believe he was obligated to do so under the option renewal. On March 23, 1990, Brookhill filed a dispossessory action and a distress warrant, seeking both possession of the premises and accrued rent. Shah vacated the premises and filed an answer contending that the original term of the lease had expired and the exercise of the extension option was void and of no force and effect against him. The trial court granted Shah’s motion for directed verdict on the grounds that the original lease between Shah and Saroj J. Patel was not properly assigned in such a way as to bind Shah to the obligations and options exercised by the subsequent tenants; and because the option to renew was not timely exercised prior to six months from the expiration of the original lease. Brookhill appeals from the judgment entered against it. Held:

“The Statute of Frauds is codified at OCGA § 13-5-30, and this statute provides that in order to be enforceable, various types of agreements must be ‘in writing and signed by the party to be charged therewith or some person lawfully authorized by him.’ ‘Any agreement that is not to be performed within one year from the making thereof is required by the Statute of Frauds to be in writing. OCGA § 13-5-30 (5). In line with this provision, it has been held that a contract creating the relation of landlord and tenant for a period in excess of one year must be in writing. [Cit.] ” 20/20 Vision Center v. Hudgens, 256 Ga. 129, 133 (2) (345 SE2d 330) (1986). See also OCGA § 44-7-2 (a). Furthermore, “[a] lease for more than a year can not be renewed except in writing [cits.],” (Hooks v. Lease, 68 Ga. App. 850, 851 (24 SE2d 601) (1943)); “ ‘and when executed by an agent, the authority of the agent to execute it must likewise be in writing.’ [Cits.]” Butler v. Godley, 51 Ga. App. 784, 786 (1) (181 SE 494) (1935).

Here the written lease was originally executed by Kern & Company, Brookhill’s predecessor as agent to Spalding Woods Village Associates, and Shah d/b/a Royal Cleaners; the assignment of the lease was from Royal Cleaners to Saroj J. Patel; and the exercise of the option to renew and extension of the lease was negotiated between Jay C. Patel on behalf of So-Hum, Inc., and Brookhill as agent for Spalding Woods Village Associates. There is no written contract or other document showing the assignment of the lease to So-Hum, Inc., or that So-Hum, Inc., was operating as the agent of Shah’s assignee leaseholder, Saroj J. Patel. Thus there was no writing as required by the Statute of Frauds to authorize the exercise of the option and, even if it had been sought in a timely manner in accordance with the terms of the original lease agreement, the purported renewal was void and inoperative. See Lewis v. Floyd, 126 Ga. App. 520 (2) (191 SE2d 291) (1972). Since the lease as renewed was unenforceable against Shah, the trial court correctly granted a directed verdict in his favor.

Decided October 17, 1990.

Huddleston & Medori, Eugene A. Medori, Jr., for appellant.

Garner & Still, Dennis T. Still, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A2034.
    CARTER v. THE STATE.
    (398 SE2d 293)
   Deen, Presiding Judge.

Carnell Carter was convicted of robbery and appeals, asserting the general grounds and the denial of his motion to suppress identification evidence as error. Held:

Each of the witnesses who identified appellant at trial had selected his photograph from a pretrial photo lineup, and later picked him from a physical lineup. There is nothing in the record to indicate that the witnesses discussed the lineups among themselves or with law enforcement officers prior to selecting Carter as the man seen leaving the crime scene.

Under Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972), a determination that the pretrial identification was not impermissibly suggestive ends the inquiry. Killens v. State, 184 Ga. App. 717, 720 (362 SE2d 425) (1987). Even if pretrial procedures were impermissibly suggestive, the trial court would not have erred in denying the motion to suppress unless, as a result of such procedures, there was also a substantial likelihood of irreparable misidentification. Goswick v. State, 150 Ga. App. 279, 280 (257 SE2d 303) (1979). In applying the Neil v. Biggers test (opportunity to view the defendant, degree of the witness’ attention, accuracy of the witness’ prior description, level of certainty demonstrated, and the time lapse between the crime and the identification), we find that there was no substantial likelihood of irreparable pretrial misidentification of the defendant by the witnesses, and that the trial court did not err in allowing these identifications into evidence. See also Thomas v. State, 176 Ga. App. 53, 57 (335 SE2d 135) (1985).

As the multiple identifications of Carter were properly admitted into evidence and he was identified at trial by the witnesses as the man seen fleeing the crime scene, we find that a rational trier of fact could find him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided October 17, 1990.

Donna L. Avans, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Charles W. Smegal, Carl P. Greenberg, Assistant District Attorneys, for appellee.


text:
    A90A2053.
    CASON v. THE STATE.
    (398 SE2d 292)
   Deen, Presiding Judge.

Appellant was convicted under OCGA § 16-10-24 (a) of misdemeanor obstruction of a law enforcement officer, and appeals from the judgment entered on the conviction.

When the police officer identified himself and attempted to arrest appellant on a pending warrant, appellant responded by running his hand into his pocket. Taking this to be a threatening action, the officer unsnapped his pistol and told appellant to take his hand out of his pocket and step forward. Instead, appellant fled on foot from the officer and eluded the arrest. Appellant testified he did not see the officer at the time in question and did nothing to obstruct or hinder the arrest. The sole enumeration of error is that the evidence was insufficient to support the conviction. Held:

An offense under OCGA § 16-10-24 (a) is committed by one who “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” A conviction must be supported by some evidence of forcible resistance or opposition to the officer. Samples v. State, 151 Ga. App. 179 (259 SE2d 178) (1979). Such actions may take the form of communications which could reasonably be interpreted as a threat of violence, or flight from the officer after being ordered to halt. Dumas v. State, 159 Ga. App. 517, 518 (284 SE2d 33) (1981); Tankersley v. State, 155 Ga. App. 917, 919 (273 SE2d 862) (1980). Whether or not the evidence established that actions taken by the appellant hindered or obstructed the officer in making the arrest is for the jury to decide. Sapp v. State, 179 Ga. App. 614, 615 (347 SE2d 354) (1986). Obviously, the jury chose not to believe the testimony of the appellant.

Evidence that appellant fled from the officer after being ordered to remove his hand from his pocket and step forward was sufficient for a rational trier of fact to find the appellant guilty beyond a reasonable doubt. Patterson v. State, 191 Ga. App. 359 (381 SE2d 754) (1989).

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided October 17, 1990.

Robert Culpepper III, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.


text:
    A89A1784, A89A1785.
    COLLINS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and vice versa.
    (398 SE2d 207)
   Deen, Presiding Judge.

Rozzie Collins sued State Farm Mutual Automobile Insurance Company over PIP benefits and associated claims, and won a jury verdict for past-due benefits, penalty for late payment, and attorney fees, but not for punitive damages. Collins appealed over jury charges and evidentiary rulings regarding punitive damages, and State Farm cross-appealed the trial court’s denial of its motion to dismiss the appeal because of Collins’s failure to file a transcript timely. In that previous appearance of these cases, this court found that the trial court should have granted State Farm’s motion to dismiss. Collins v. State Farm &c. Ins. Co., 194 Ga. App. 556 (391 SE2d 16) (1990). However, the Supreme Court reversed, following its recent holding in Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990). Collins v. State Farm &c. Ins. Co., 260 Ga. 271 (394 SE2d 353) (1990). Held:

Case No. A89A1785

1. The pertinent procedural facts are set forth in Collins v. State Farm &c. Ins. Co., 194 Ga. App. 556, supra, and will not be repeated here. The trial court denied State Farm’s motion to dismiss the appeal, finding that the nine-month delay in filing the transcript was the fault of the court reporter, but this court found the court reporter’s tardiness no excuse where the appellant failed to request any extension of time for filing the transcript. In Baker v. Southern R. Co., supra at 116, the Supreme Court held that “[t]he failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal.” In Collins v. State Farm &c. Ins. Co., 260 Ga. 271, supra, the Supreme Court held that Baker controlled the instant case. Accordingly, that judgment of the Supreme Court is made the judgment of this court. We now find no error in the trial court’s denial of State Farm’s motion to dismiss.

Case No. A89A1784

2. Collins contends that the trial court erred in instructing the jury on the principle codified at OCGA § 51-12-5 that punitive damages could not be awarded unless the jury found aggravating circumstances in the action or intention of State Farm, because OCGA § 33-34-6 (c) does not require such and because the jury charge imposed the tort standard for punitive damages in a contract action. In Insurance Co. of North America v. Smith, 189 Ga. App. 353, 356 (375 SE2d 866) (1988), this court found no “merit in the argument that the definition in § 51-12-5 does not apply to punitive damages in anything other than tort cases. OCGA § 33-34-6 (c) specifically provides for punitive damages, but does not define the term. Therefore, it was proper for the trial court to use that statutory definition provided in § 51-12-5 in the absence of provisions to the contrary.” Similarly, we find no error in the trial court’s instruction regarding punitive damages and definition of aggravating circumstances. Our statement in Williams v. Aetna Cas. &c. Co., 182 Ga. App. 684, 686 (356 SE2d 690) (1987) that wilful and wanton conduct under OCGA § 51-12-5 was not at issue in a claim for punitive damages under OCGA § 33-34-6 is not at odds with Insurance Co. of North America or this holding. Williams did not involve jury instructions on this issue, and correctly pointed out that the standard for awarding punitive damages under OCGA § 33-34-6 (c) differs from the definition of punitive damages at OCGA § 51-12-5.

3. The burden of proof regarding the issue of good faith under OCGA § 33-34-6 (c) lies with the insurer. Gillem v. MARTA, 160 Ga. App. 393 (4) (287 SE2d 264) (1981). The record does not bear out Collins’ contention that the trial court’s jury instructions shifted this burden. The trial court clearly instructed the jury that while Collins had the burden of proof in the action, State Farm had the burden of proof with regard to the good faith/bad faith issue.

4. Collins also contends that the trial court erred in disallowing evidence of State Farm’s worldly circumstances on the issue of punitive damages. Under OCGA § 51-12-6, evidence of worldly circumstances is admissible only where a party seeks damages only for injury to peace, happiness or feelings, which was not the case here. Stepperson, Inc. v. Long, 256 Ga. 838 (353 SE2d 461) (1987). The statutory provisions regarding punitive damages were appropriately referred to for definitional purposes, as discussed above, and were also applicable in determining whether the evidence of worldly circumstances was admissible in the claim for punitive damages. The trial court did not err in excluding that evidence.

Judgments affirmed.

Birdsong and Cooper, JJ., concur.

Decided September 4, 1990

Rehearing denied October 18, 1990.

William Q. Bird, for appellant.

Powell, Goldstein, Frazer & Murphy, James W. Hawkins, Jerry B. Blackstock, John T. Sparks, for appellee.