author: Birdsong, Presiding Judge. Andrews, Judge,

text:
    A93A2467.
    THE STATE v. BROWN.
    (442 SE2d 818)
   Birdsong, Presiding Judge.

The State of Georgia appeals the grant of Ronald Brown’s motion to suppress evidence.

The State’s evidence at the hearing on motion to suppress shows that police officers on patrol drove into an apartment complex in Atlanta where arrests had been made for drug activity in the past. They saw a group of people sitting and standing a few feet from an apartment. The officers did not see anyone engaging in drug activity. The arresting officer testified that appellee was not holding anything and the officer “did not see [appellee] do anything” and did not see anything in appellee’s hands. Appellee appeared to be looking toward the police car and then turned and ran 10-15 feet toward the door of the nearby apartment. He was the only one who “ran.” Appellee appeared to struggle with the apartment door, but the door was not locked and appellee entered the apartment. The officers followed him into the apartment. One officer saw appellee reach the end of the apartment, turn around, and drop a bag, which the officer then picked up. The officer testified the bag contained 16 hits of crack cocaine. The apartment’s resident, Jennifer Tabb, screamed when she saw appellee and the police officers.

When the police drove up, Rema Tabb, the sister of the apartment’s resident, was sitting on the porch of the apartment with about eight friends, both male and female. She testified that appellee was inside the apartment when the police drove up. The officer said, “Hey you, come here,” and appellee closed the door. The officers followed appellee inside and the arresting officer went right through to the bathroom, reached up and recovered a bag from a shelf and said to Jennifer Tabb, “Look what I found on your shelf.” Although the apartment resident, Jennifer Tabb, signed an affidavit at the time of the arrest saying that appellee did not have permission to enter her home, at trial she testified she was forced to sign this affidavit by threats that her children would be taken from her. Both Jennifer and her sister Rema (appellee’s girl friend) testified that appellee frequently visited the apartment and had permission to enter. Appellee was placed under arrest for burglary, for which he was not indicted, and for possession of cocaine with intent to distribute. Held:

1. On review of a ruling on a motion to suppress, we construe the evidence most favorably to the trial court’s ruling, as the trial court has ruled on disputed evidence and the credibility of the witnesses, and we must accept that ruling unless it is clearly erroneous. Johnson v. State, 233 Ga. 58 (209 SE2d 629); State v. Corley, 201 Ga. App. 320 (411 SE2d 324). We are not authorized to substitute our findings of fact for those of the trial judge.

This case is distinguished from State v. Billoups, 191 Ga. App. 834 (383 SE2d 198), where there was no police entry into a dwelling. Construed in favor of the trial court’s findings, the evidence shows that appellee was either inside the apartment when police arrived, or he was standing with a group of friends on the porch or near the door of the apartment and he went inside when the police drove up.

No offense was committed in the officer’s presence outside the apartment (OCGA § 17-4-20 (a)) and no suspicious activity or contraband was seen before police entered the apartment. Absent probable cause and exigent circumstances, warrantless entries into the home are limited by the Fourth Amendment. Hamrick v. State, 198 Ga. App. 124, 126 (401 SE2d 25). An arrest in a private home based on “hot pursuit” is a lawful arrest when a suspect, as to whom police have probable cause, attempts to escape into the house. Id. at 126-127; Brown v. State, 163 Ga. App. 209, 210 (1) (294 SE2d 305). But there was no probable cause as appellee had not been seen engaging in any criminal activity and, construing the evidence in favor of the trial court’s ruling, he was not attempting to escape after being seen engaging in suspicious activity. See OCGA § 17-4-20 (a). As no criminal activity was observed by police, the mere fact that (according to police) appellee “ran” inside the apartment when the police drove up did not provide probable cause and/or exigent circumstances authorizing the police to enter Jennifer Tabb’s home to arrest appellee without a warrant (Hamrick, supra); in any case, the evidence construed in favor of the trial court’s ruling shows appellee did not “run” inside, but was standing at or near the apartment door when police drove up, or was inside the apartment.

On appeal, we are not authorized to substitute our findings of fact for the trial court’s; construing the evidence in favor of the trial court’s ruling, we find the ruling was supported by some evidence, and was not clearly erroneous. Corley, supra.

2. The question is raised of appellee’s standing to object to the unlawful intrusion into his girl friend’s sister’s apartment.

The evidence viewed in favor of the trial court’s ruling shows that appellee and his girl friend were regular social visitors to Jennifer Tabb’s apartment. Tabb testified that her sister Rema, appellant, Tabb’s friend Estella, and Estella’s brother Darryl and others were on and in the area of the porch of her apartment. Appellee had an established relationship with Tabb as her frequent social guest. He and Jennifer Tabb had been friends a long time; he had dated her sister Rema two or three years. Appellee had left clothing and personal effects at Jennifer Tabb’s apartment: “his coat, his radio, things like that.” He had spent the night at her house on occasion. The front door was closed but not locked, as there had been a lot of shooting outside and Tabb would not lock the door while her sister was outside. Although Rema Tabb testified appellee was inside the house and the door was open when police arrived, the trial court reconciled the evidence in determining its weight and the witnesses’ credibility, whether appellee was lounging on the porch with friends with the apartment door closed or whether he was inside the apartment when the police arrived, the undisputed evidence is that he was in the apartment when the police made this warrantless intrusion.

It is not generally the law that a “mere visitor” has no expectation of privacy in premises of another, as we said in the unusual circumstances of Delgado v. State, 192 Ga. App. 356 (384 SE2d 680), citing Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387). In Minnesota v. Olson, 495 U. S. 91, 96, fn. 5 (110 SC 1684, 109 LE2d 85), the Supreme Court said that a place “need not be respondent’s ‘home,’ temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. '(T)he Fourth Amendment protects people, not places,’ Katz v. United States, 389 U. S. 347, 351 [88 SC 507, 19 LE2d 576], and provides sanctuary for citizens wherever they have a legitimate expectation of privacy. Id., at 359.” (Emphasis supplied.) “Olson’s status as an overnight guest [was] alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, supra at 96-97.

The Supreme Court relied on Jones v. United' States, 362 U. S. 257 (80 SC 725, 4 LE2d 697) for the “ ‘unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion.’ ” Minnesota v. Olson, supra at 97-98; Rakas at 141-142. The distinctions that in Jones, the defendant had a key to his friend’s home and could “come and go and admit and exclude others,” whereas Olson was never left alone in the house, “are not legally determinative.” Minnesota at 98. To hold “that an overnight guest has a legitimate expectation of privacy in his host’s home” is a sufficient-but-not-necessary holding; it “merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society. ... We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home. . . . [The overnight guest] seeks shelter in another’s home precisely because it provides him with privacy. . . . Society expects at least as much privacy in [the home of a friend] as in a telephone booth — ‘a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.’ Katz, [supra].” (Emphasis supplied.) Id.

Olson’s expectation of privacy was legitimate not because he spent the night, but because his expectation of privacy was rooted in “understandings that are recognized and permitted by society,” (Rakas, supra at 144, n. 12) and was one “society is prepared to recognize as reasonable.” Minnesota v. Olson, supra at 97. Compare United States v. Hicks, 978 F2d 722, 723-724 (D.C. Cir.), where the court held that one arrested while using another’s home to conduct an illegal business was not engaging in a longstanding social custom that serves functions recognized as valuable by society. See also United States v. McNeal, 955 F2d 1067, 1070 (6th Cir.).

Viewing the evidence in favor of the trial court’s ruling, appellee had a legitimate expectation of privacy in the apartment of Jennifer Tabb. He was a frequent welcome social visitor, he left possessions there, and he had spent the night as a social guest. That he may not have been spending the night on this occasion does not alter his status as Tabb’s social guest. He had been allowed previously to “seek shelter” by entering her house on a recurring basis, and that is what he did on this occasion — he entered her house. As the evidence viewed to support the trial court’s ruling shows, he was not a stranger standing on the street; he was not seen doing anything illegal. He was in the apartment or on or around the porch, visiting with Tabb’s sister and other social friends of Tabb, male and female, and he entered her home just prior to police intrusion while he was in a social guest status. This sort of visiting is “a longstanding social custom that serves functions recognized as valuable by society.” Minnesota v. Olson, supra at 98. Appellee’s expectation of privacy in Tabb’s home was “rooted in ‘understandings that are recognized and permitted by society.’ Id. at 100, citing Rakas, supra at 144. The evidence shows appellee had the right to “[seek] shelter in [Tabb’s] home precisely because it provide[d] him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id. at 99.

In Delgado, supra at 357, cited for the overbroad concept that a “mere visitor” has no expectation of privacy in the premises of another where he has neither a proprietary nor a possessory interest, the defendant was no more than a “drop-in” who knocked on a motel room door while police were executing a search warrant inside. Neither Delgado nor any other case cited by the dissent bears any similarity to this case.

Decided March 14, 1994

Reconsideration denied April 1, 1994.

Lewis R. Slaton, District Attorney, Samuel W. Lengen, Barry I. Mortge, Assistant District Attorneys, for appellant.

The trial court did not err in concluding that appellee has standing to claim protection under the Fourth Amendment.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Beasley, P. J., Cooper, Johnson and Smith, JJ., concur. Andrews and Blackburn, JJ., dissent.

Andrews, Judge,

dissenting.

Accepting the facts as set out in the majority opinion, I do not believe Brown had standing to contest the officer’s entry into and search of the apartment and, therefore, I respectfully dissent.

There is no dispute that the apartment which Brown entered was that of Ms. J. Tabb who resided there with her children and boyfriend. Brown dated Ms. Tabb’s sister and had permission to be in the apartment. This, however, does not bestow the requisite standing for purposes of asserting violation of federal Fourth Amendment rights and similar rights under the Georgia Constitution.

At most, Brown was a visitor in the apartment. “ ‘[A]s a mere visitor ... he had no expectation of privacy in the premises of another, where he had neither a proprietary nor a possessory interest. [Cits.]’ [Cit.] ‘The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 S. Ct. 421, 58 L. Ed. 2d 387). And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed. Id.’ ” Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989). E.g., Byers v. State, 204 Ga. App. 552, 554 (1) (420 SE2d 23) (1992); Morgan v. State, 195 Ga. App. 732, 736 (4) (394 SE2d 639) (1990); Rich v. State, 188 Ga. App. 287, 288 (1) (372 SE2d 670) (1988).

I am authorized to state that Judge Blackburn joins in this dissent.

Allison C. Griffin, for appellee.


source: Caselaw Access Project

author: Cooper, Judge. Smith, Judge,

license: Public Domain

text:
    A93A2547.
    EVANS v. THE STATE.
    (443 SE2d 296)
   Cooper, Judge.

Appellant was indicted for the offenses of rape, statutory rape, and child molestation of a 13-year-old girl. He pled guilty to one count of rape and appeals from the trial court’s denial of his motion to withdraw his guilty plea.

After a jury was impanelled, appellant’s counsel stated for the record that appellant had decided just before trial to accept a negotiated plea of guilt to the rape charge; however, the State was no longer willing to accept the plea since its offer had expired the day before. The prosecutor then gave his opening statement and appellant’s counsel began his opening at which point the State objected. Although the opening statements were not transcribed, a review of the colloquy between counsel and the trial court concerning the State’s objection reveals that appellant’s counsel argued in his opening that the victim had consented to have sex with appellant. The trial court advised appellant’s counsel that consent was not a defense since the victim was under the age of 14 and could not legally give her consent. The court then advised appellant’s counsel that he might need to speak with appellant and the State about whether the State would still be willing to accept a plea. After a brief recess, the parties advised the court that appellant had decided to plead guilty to the rape charge. The court advised appellant of the various rights he was waiving and of the possible sentences he could receive. It then accepted the plea and sentenced appellant to 20 years. Appellant subsequently filed a motion to withdraw his guilty plea in which he claimed, inter alia, that he was not represented by competent counsel. The trial court denied the motion, and appellant appeals.

Appellant argues on appeal that his plea was not knowingly and voluntarily entered and that he received ineffective assistance of counsel in connection with the plea. Specifically, appellant claims his trial counsel could not have adequately advised him of the offenses for which he was charged since counsel himself did not understand the elements of those offenses and that counsel’s reference to the victim’s consent in the opening statement left him no choice but to plead guilty. Appellant also contends the trial court neglected to ascertain a factual basis for the plea in violation of USCR 33.9.

It does not appear that appellant or his trial counsel testified at the hearing on the motion to withdraw appellant’s guilty plea as no transcript of that hearing appears in the record. In any event, appellant has failed to show that he “felt compelled to plead guilty because of any action or inaction of his trial [counsel].” Hatcher v. State, 259 Ga. 274, 275 (1) (379 SE2d 775) (1989). To the contrary, the record reveals that appellant had decided to plead guilty to the rape charge prior to the start of trial; however, the State was no longer willing to accept a plea at that time. We further cannot say that the record reveals that appellant’s trial counsel lacked a basic understanding of the elements of the crimes with which appellant was charged. Although not entirely clear, what appellant’s counsel was apparently trying to say in his opening statement was that the State would not be able to prove the elements of forcible rape. See OCGA § 16-6-1; Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977).

However, “the record does not affirmatively show that the court ascertained the factual basis for appellant’s plea as required by USCR 33.9. There is no discussion in the transcript of the factual basis for the charges and no presentation or summary by the prosecutor of the evidence the State would have presented at a trial.” Watt v. State, 204 Ga. App. 839, 840 (420 SE2d 769) (1992). While the State argues that the trial court was aware of the factual basis because the State had earlier given its opening statement, the opening statement was not transcribed and there is no indication in the record as to what was stated in the prosecution’s opening statement. Thus, the record before this court does not establish that the trial court was aware of the factual basis for appellant’s plea to the crime of rape. Compare Golden v. State, 190 Ga. App. 477 (379 SE2d 230) (1989) (record established trial court aware of factual basis since transcript contained prosecutor’s summary of the evidence). Because the record fails to show that the trial court ascertained a factual basis for the plea, we find that the record does not affirmatively show appellant’s plea was knowingly and voluntarily entered. See Watt, supra at 840; see also Collum v. State, 211 Ga. App. 158 (438 SE2d 401) (1993). Accordingly, the trial court should have granted appellant’s motion to withdraw his guilty plea.

As to the dissent’s reliance on Ford v. State, 248 Ga. 241 (2) (282 SE2d 308) (1981), for the proposition that this state does not require establishment on the record of the factual basis for guilty pleas and that our decision in Collum should be overruled, we note that Ford predates the Supreme Court’s adoption in 1985 of USCR 33.9, which specifically requires the trial judge to “mak[e] such inquiry on the record as may satisfy him that there is a factual basis for the plea.” Furthermore, the dissent admits that virtually all those cases which have found compliance with USCR 33.9 have done so on the ground that the transcript of the guilty plea hearing showed the trial court was aware of the factual basis for the plea. See Golden, supra at 478 (trial court aware of factual basis as plea hearing transcript contained prosecutor’s summary of the evidence it expected to present); Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990) (same); Clark v. State, 186 Ga. App. 106, 107 (2) (366 SE2d 361) (1988) (same); see also Brannon v. State, 176 Ga. App. 49, 50 (2) (335 SE2d 163) (1985) (district attorney’s recitation of the facts and court’s response made it clear court familiar with factual basis for plea). In fact, in Golden, we specifically stated that it was unnecessary for “a trial court [to] affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when the transcript presents evidence that the trial court was aware of the factual basis.” (Emphasis supplied.) 190 Ga. App. at 478. No case that we have uncovered has held, as would the dissent, that the record established that the trial court was aware of the factual basis simply because some document contained in the record summarized the facts of the crime. If that were the case, there would be no need for USCR 33.9 since we could almost always hold that the trial court was aware of the factual basis by virtue of a recitation of the facts in either the indictment or some other part of the record. Finally, we take issue with the dissent’s assertion that the trial court was required to make an inquiry on the record as to the factual basis “for the sole purpose of facilitating appellate review.” USCR 33.9 makes it clear that the purpose of requiring the trial judge to make an inquiry on the record is to ensure that the trial court is satisfied that a factual basis does exist for the plea. Thus, a trial court may refuse to accept a plea because it finds no factual basis exists for the plea. See, e.g., Head v. State, 262 Ga. 795 (2) (426 SE2d 547) (1993).

Judgment reversed.

Pope, C. J., McMurray, P. J., Beasley,

P. J., and Blackburn, J., concur. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. In Collum v. State, 211 Ga. App. 158 (438 SE2d 401) (1993), we held for the first time that the failure to satisfy Uniform Superior Court Rule 33.9 alone mandates that a subsequent motion to withdraw guilty plea must be granted. Though I concurred specially in Collum, I am now convinced that case was wrongly decided.

Since the majority bases its decision on USCR 33.9, I first note that USCR 33.12, which deals specifically with the matter at hand, provides that “[i]n the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty ... as a matter of right once sentence has been pronounced by the judge.” (Emphasis supplied.) The majority’s holding necessarily implies that it is in all cases a “manifest injustice” under USCR 33.12 to fail to make the record counselled in USCR 33.9. I cannot agree. A plain reading of USCR 33.9 simply does not support that position.

In fact, the question of whether the present inquiry properly turns on the adherence to prophylactic rules has been previously addressed. In Ford v. State, 248 Ga. 241 (282 SE2d 308) (1981), the Supreme Court observed that such rigidity is not mandated under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). The Supreme Court echoed that sentiment in 1985 by adopting a “factual basis” rule that is couched in terms that are neither objective, precise, nor obligatory. See 1983 Ga. Const., Art. VI, Sec. IX, Par. I; 253 Ga. at 863.1 would disapprove any dicta to the contrary in Watt v. State, 204 Ga. App. 839, 840 (420 SE2d 769) (1992), and I would overrule Collum v. State, supra, in light of the prior holding of the Georgia Supreme Court in Ford v. State, supra.

The majority opinion fully demonstrates the lack of any “manifest injustice” which would mandate the withdrawal of Evans’s guilty plea as a matter of right under USCR 33.12, or as a constitutional imperative under Boykin. Moreover, “after the pronouncement of a sentence, a ruling on a motion to withdraw a guilty plea is within the sound discretion of the trial court,” and “will not be disturbed on appeal unless manifestly abused.” (Citations and punctuation omitted.) Scott v. State, 185 Ga. App. 568, 570 (365 SE2d 127) (1988).

Finally, I have no difficulty whatsoever determining the factual basis for the plea in this particular case, as the record contains an application for a search warrant with supporting affidavit. The affiant, a juvenile investigator, relates the 13-year-old victim’s statement to him, and that statement fully describes the rape alleged. See OCGA § 24-3-16. The act described by the victim and related in the investigator’s affidavit would indeed support a forcible rape conviction.

As the majority notes, the trial court heard the State’s opening statement before Evans changed his plea. It also should be noted that the record shows the trial court conducted a Brady examination of the State’s file on the morning of trial, before opening statements and before Evans pled guilty.

The trial court’s failure to make whatever inquiry that it “should” have made on the record under USCR 33.9 for the sole purpose of facilitating appellate review was therefore harmless. See Scurry v. State, 194 Ga. App. 165 (390 SE2d 255) (1990); Wright v. State, 143 Ga. App. 247 (237 SE2d 714) (1977). In other words, if the reviewing court can determine the existence of a factual basis for the plea based on the state of the record and transcript when the trial court accepted the plea, then the record is satisfactory for review purposes without need for further factual inquiry by the trial court on the record prior to sentencing on that plea.

Since I otherwise agree with the majority’s treatment of the issues presented, I would affirm.

Decided March 18, 1994

Reconsideration denied April 1, 1994

Arleen E. Gardenhire, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Birdsong, Judge Andrews, and Judge Johnson join in this dissent.


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A2553.
    TINSLEY et al. v. WORLDWIDE INSURANCE COMPANY.
    (442 SE2d 877)
   Cooper, Judge.

Appellants John and Mary Tinsley brought an action against the City of Valdosta, the Valdosta Police Department and Officer Patricia Smith for injuries sustained by John Tinsley when his car collided with a police car which was following an ambulance through an intersection. Appellee was served with a copy of the complaint, presumably as appellants’ uninsured motorist carrier. The trial court granted summary judgment to the defendants based on sovereign and official immunity. No appeal was taken from the court’s order. Appellee then filed a motion for summary judgment which the court also granted. In its order, the court cited the long-standing rule that a condition precedent to coverage is the establishment of legal liability on the part of the defendants. Cash v. Balboa Ins. Co., 130 Ga. App. 60, 61 (202 SE2d 252) (1973). However, since summary judgment was granted to the defendants based on sovereign immunity, the court found that appellants failed to meet the condition precedent and therefore were not entitled to coverage. This appeal followed, appellants asserting as error the grant of summary judgment upon the finding that the condition precedent is an absolute condition precedent, applicable in all cases.

OCGA § 33-7-11 (a) (1) requires an uninsured motorist carrier “to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle. . . .” “ ‘(T)his court has interpreted the Uninsured Motorist Act [“the Act”] to require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known, (cit.), or unknown, (cit.).’ [Cit.]” Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990). However, in Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (224 SE2d 167) (1976), the Supreme Court held that the general rule did not apply in a case in which a judgment could not be obtained against the uninsured motorist because of a discharge in bankruptcy. The court concluded that the Act was intended to allow for the adjudication of the insurer’s liability to the insured under the contract of insurance whether the uninsured motorist is known or unknown; thus, the insurance company is the real party in interest and not the uninsured motorist. Id. at 456-457. Accordingly, the court determined that it would be contrary to the purpose of the Act to allow an insurer to escape liability under its contract because of the uninsured motorist’s bankruptcy. Id. at 456. “Since no liability can attach to the known uninsured [motorist], the action should have been allowed to proceed as though it were a John Doe action and the insured can establish ‘all sums which he shall be legally entitled to recover as damages,’ caused by the uninsured motorist.” Id. at 457. Appellants contend that the rule is likewise inapplicable in the instant case because judgment against the defendants is similarly barred by sovereign immunity.

Appellee contends that for various reasons the exception created in Wilkinson should be limited to the facts and circumstances of that case, chiefly because bankruptcy discharge and sovereign immunity are not analogous. Appellee urges that the more important aspect of the Wilkinson decision is not the court’s determination that the uninsured motorist carrier is obligated to its insured whether the uninsured motorist is known or unknown and whether he is amenable to judgment or not under the Act. Instead, appellee contends that the more significant aspect of the case was the court’s recognition of the specific provision in the bankruptcy code which establishes that the liability of an insurance carrier cannot be altered by the discharge of the bankrupt. Id. at 457. Appellee also points to the fact that after Wilkinson was decided, the General Assembly codified the bankruptcy exception. See OCGA § 33-7-11 (a) (4). However, “[a]ny difference between [sovereign immunity] and the effect of a bankruptcy discharge, is legally insignificant.” Watkins v. United States, 462 FSupp. 980, 991 (S.D. Ga. 1977). “A bankruptcy discharge is a valid defense to a claim or judgment on a debt, operating as ‘a bar to all future legal proceedings for the enforcement of the discharged debt.’ [Cits.]” Id. Sovereign immunity has the same effect, barring suits against public officials for liability for their negligent acts (see Logue v. Wright, 260 Ga. 206 (1) (392 SE2d 235) (1990)), as well as, municipalities for the negligent acts of their agents in their official capacities. See generally Hiers v. City of Barwick, 262 Ga. 129 (2) (414 SE2d 647) (1992); Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878) (1980).

Appellee’s other attempts to legally and factually distinguish Wilkinson are also unavailing. Appellee points to cases decided since Wilkinson in which this court continues to uphold the requirement that the insured recover judgment against the wrongdoer to be legally entitled to receive uninsured motorist benefits. In those cases, the court has allowed liability defenses available to the uninsured motorist to inure to the benefit of the uninsured motorist carrier. See Boles, supra; Lowes v. Allstate Ins. Co., 204 Ga. App. 148 (1) (418 SE2d 465) (1992); McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727 (402 SE2d 519) (1991). However, in those cases, plaintiffs suffered dismissals of their complaints first against uninsured motorists “on the merits,” based on lack of service or jurisdiction. The dismissals of the uninsured motorists on the merits then had the “ancillary effect of constituting a determination on the merits of [plaintiffs’] uninsured motorist claim[s] against [the uninsured motorist carriers].” Boles, supra at 596-597; Lowes, supra at 149-150; McCrary, supra at 728-729. However, the key factor which unites Wilkinson to the case at bar is the impossibility of appellants ever obtaining a judgment against the uninsured motorist. For this reason, we find that it would defeat the intent and purpose of the Act if the appellee were allowed to escape liability because of the defendants’ discharge from this litigation under the doctrine of sovereign immunity.

Thus, this “action should have been allowed to proceed as though it were a John Doe action and the insured can establish ‘all sums which he shall be legally entitled to recover as damages,’ caused by the uninsured motorist.” Wilkinson, supra at 457. Accordingly, the trial court erred in granting appellee’s motion for summary judgment.

Judgment reversed.

Smith, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur because the impossibility of a judgment against the uninsured motorist is created by law unrelated to the merits of the case and not through any inaction or procedural misstep of the injured party.

That is, the law prevents the condition precedent from being satisfied. In Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (224 SE2d 167) (1976), it was the discharge in bankruptcy; in this case it is the sovereign immunity of defendant. In both cases, the merits of tort liability could not be reached because of the legal bar to reaching them. It is for this reason that the law does not insist that the condition precedent be fulfilled, for to insist would clothe the insurer with the insulation afforded the tortfeasor, which insulation is not intended to shield the insurer from compliance with its contractual obligation.

Decided March 17, 1994

Reconsideration denied April 1, 1994

Dodd & Turner, Roger J. Dodd, for appellants.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, George T. Talley, Hicks, Casey & Young, Mark A. Barber, for appellee.


author: Johnson, Judge.

text:
    A94A0082.
    GORDON COUNTY FARM et al. v. COPE.
    (442 SE2d 896)
   Johnson, Judge.

Edith Cope injured her lower back when she slipped and fell while working for Gordon County Farm. She returned to work until becoming totally disabled approximately one month after the accident. Cope filed a claim seeking payment for temporary total disability and medical bills. Gordon and its insurer, Travelers Insurance Company, raised the “Rycroft defense,” asserting that Cope is barred from any recovery because she falsely stated in her employment application that she had never been bothered by lower back pain. The Rycroft defense provides that the following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to her physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury. See Ga. Elec. Co. v. Rycroft, 259 Ga. 155, 158 (378 SE2d 111) (1989). The administrative law judge denied Cope’s claim, finding that she suffered significant lower back pain before applying for employment with Gordon, that she knowingly misrepresented in her job application that she had never been bothered by lower back pain, that Gordon substantially relied on this misrepresentation in hiring Cope and that there was a causal connection between the misrepresentation and the injury Cope suffered in the fall. The State Board of Workers’ Compensation adopted the ALJ’s ruling.

The superior court reversed the board’s decision, finding that although the board properly applied the first two prongs of the Rycroft defense, it misconstrued the final prong of that defense. The trial court ruled that “[t]he proper standard appears to be whether or not the employee’s pre-existing condition contributed to the occurrence of the accident.” (Emphasis supplied.) Gordon and Travelers appeal, arguing that the trial court misinterpreted the third factor of the Rycroft defense.

Decided March 23, 1994

Reconsideration denied April 1, 1994

Baker, Russell & Pacious, Ed G. Russell, Jr., for appellants.

Collins & Eddings, Michael R. Eddings, Davidson & Strain, John M. Strain, for appellee.

The trial court’s ruling is clearly erroneous. As we held in Byrd’s Elec. &c. v. Johnson, 199 Ga. App. 621, 622 (405 SE2d 548) (1991), “[t]he obvious import of the third [Rycroft] factor is that there must be a causal connection between the employee’s pre-existing physical condition, regarding which the employee made the false representation, and the injury for which benefits are claimed.” (Emphasis supplied.) The facts in Rycroft support this holding, as well as our subsequent interpretations of the Rycroft defense. In Rycroft, the accident occurred when the claimant, whose hand was pinched between two boards, moved back in order to extricate his hand from the boards, stumbled and fell, fracturing his spine in the same place where he had a prior injury which he had not revealed to his employer. Rycroft, supra at 156. The claimant’s prior back condition clearly did not cause the accidental fall; rather, it exacerbated the injury resulting from the fall. Thus, contrary to the trial court’s holding in the instant case, neither the facts nor the plain language of Rycroft require a causal connection between the physical condition and the accident. The employer is not required to show that Cope’s pre-existing back condition in any way caused her fall; rather, it need only show that there is a causal connection between the misrepresentation about the condition and the injury sustained in the fall.

The ALJ found, “[a]lthough there is no evidence to indicate that the fall itself was attributable to the pre-existing back condition, the medical reports indicate that the injury resulting from [the fall] was considerably more severe than would have been the case had the condition not been present. Indeed, it is not clear that there would have been any appreciable injury at all absent the pre-existing condition. In my estimation, this fact establishes a causal connection between the misrepresentation and the injury.” The ALJ’s finding, adopted by the board, is a correct interpretation and application of the third prong of the Rycroft defense and is supported by evidence in the record. See OCGA § 34-9-105 (c). Because the trial court’s ruling misconstrues and misapplies the law, it must be reversed.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1906.
    LIPHAM v. FEDERATED DEPARTMENT STORES, INC.
    (444 SE2d 417)
    Decided April 1, 1994.

      John M. Hyatt, for appellant.

      Drew, Eckl & Farnham, W. Wray Eckl, Elizabeth Helm, for appellee.
   Birdsong, Presiding Judge.

The Supreme Court of Georgia reversed the holding of this court in Lipham v. Federated Dept. Stores, 208 Ga. App. 385 (430 SE2d 590), which case affirmed the judgment of the trial court granting summary judgment to appellee Federated Department Stores, Inc., and concluded that the grant of summary judgment was improper, as to whether Rich’s employee Heal acted with ordinary care was a question for jury resolution. Therefore, this must be reversed and remanded for compliance with the holding of the Supreme Court.

Judgment reversed and remanded with direction.

Pope, C. J., McMurray, P. J., Beasley, P. J., Cooper, Andrews, Johnson, Blackburn and Smith, JJ., concur.


author: Beasley, Presiding Judge. Cooper, Judge, Smith, Judge,

text:
    A93A1897.
    THE STATE v. ESPINOZA.
    (442 SE2d 911)
   Beasley, Presiding Judge.

Lorenzo Espinoza was indicted for possession with intent to distribute marijuana, OCGA § 16-13-30 (j) (1). The State appeals the grant of his motion to suppress, OCGA § 5-7-1 (4). It contends that the seizure was within the “common area” curtilage. The case begins at Atlanta Hartsfield International Airport and involves two brothers.

Officer Webster, assigned to the Drug Enforcement Administration (DEA) at the airport, received information from an informant that on November 5, 1991, Alejandro Espinoza would be flying on a certain flight on a one-way cash ticket from Atlanta to Houston. The informant provided a physical description. Webster checked the airline’s passenger name record and confirmed that Alejandro had checked in and had purchased his ticket with cash at the counter just 45 minutes prior to the flight’s scheduled departure. About ten minutes before departure, Webster and DEA Agent Harvey observed him exit a lounge directly across from the gate. Webster approached, identified himself as a police officer, and asked to speak with him. Alejandro agreed to do so and permitted Webster to inspect his airline ticket, which bore the name “Alex Espinoza.” He also provided a Georgia driver’s license with his name on it.

Webster then advised that he was a narcotics agent whose duty it was to deter narcotics traffic through the airport. He asked to search Alejandro’s travel bag, to which he consented. Inside, Webster found a package, gift-wrapped with “diamond” paper, on top of what appeared to Webster to be two to three days’ worth of clothing.

Webster inquired if the trip to Houston was for business or pleasure and Alejandro replied that he was going to visit his father in the hospital. He told Webster that his father was “going in for a kidney transplant and if that didn’t work, he was going to have by-pass surgery.” That struck Webster as peculiar. So did the fact that Alejandro stated he would be in Houston for a week, as it appeared there were not enough clothes in the bag for a week. Alejandro told Webster he did not have any checked luggage.

When Webster looked at the gift-wrapped package he noticed a card which read, “To: Jennifer, From: Kathy.” Webster asked Alejandro if the package belonged to him. He replied that it did not, that he had gotten it from a friend and intended to deliver it to a person in Houston. He stated he “got it from Jennifer to Kathy” and said it contained steak knives. He refused to let the officers open it. Webster lifted the package and was convinced it did not contain steak knives. Alejandro gave permission for the package to be X-rayed, which disclosed “four rectangular type objects.” He then agreed to placement of the package in a line-up for a dog to test and was told the package would be detained but he was free to go.

He elected to stay and watch the line-up. The dog “alerted to the package” and tore its corner, exposing United States currency. Alejandro continued to deny any knowledge of the contents of the package and initially denied wrapping it. After being confronted with two store receipts dated that day for gift wrapping and tape, he admitted wrapping it. Webster obtained a search warrant authorizing a search of the package, and $38,300 was found inside.

During Alejandro’s interview, he gave his address as 251-B Dickson Road, Marietta, Georgia, but a boat registration he had on his person listed his address as 251-A. He related that he had a brother, Lorenzo Espinoza, who lived in Brownsville, Texas. The National Drug Information Computer showed that such a named individual had previously negotiated 2,000 pounds of marijuana.

Agent Harvey, who was present during the interview, called the Marietta/Cobb/Smyrna Narcotics Unit (MCS) and related to them a “summary of the entire events of that evening, including the interview of Alejandro Espinoza.” Harvey advised those at MCS to drive by and verify the address, which they did.

Based on the information provided to MCS, a search warrant was issued for “251-B Dickson Rd., Marietta, Cobb Co., Ga., and any outside buildings or vehicles present,” for tangible evidence comprised of “unused alternating light blue diamonds and pink diamonds wrapping paper, U. S. currency, notes or drug records and any controlled substance as fruits of the crime.”

The property manager of the duplex admitted the officers into both 251-B, leased to Alejandro, and 251-A, leased to appellant, his brother Lorenzo. The search of 251-B disclosed wrapping paper, notes, and store receipts for the wrapping paper. The officers also found some marijuana seeds (location unknown or not remembered). After the search of both residences, an agent discovered approximately five pounds of marijuana in a garbage bag outside near the driveway. The State concedes that whatever evidence was found inside 251-A, Lorenzo’s unit, is properly suppressed as the fruit of an illegal search. The question is the legality of the search which produced the marijuana found beside the driveway.

One forked driveway served the duplex; after entry from Dickson Road it split to partially encircle the duplex. The location of the marijuana was described variously as “along side the driveway in some bushes”; “midway down the driveway, off to the — as you’re facing the driveway, it was off to the left hand side in some bushes”; “just around this curve area right here . . . right in the woods. I’d say seven to eight feet off of the driveway”; 25-30 yards from the house. Facing the front of the structure, it was found on the left side of the driveway; unit 251-A is on the left side of the building.

The trial court found that Alejandro lived in unit 251-B, for which a search warrant was issued based on the seizure of $38,300 in U. S. currency (among other things) from him at the Atlanta Airport; that there was no search warrant or permission to enter 251-A; and that approximately five pounds of marijuana was “found on the grounds of 251-A and/or 251-B.”

The court concluded that law enforcement officers had no legal right to enter the premises of 251-A and that the alleged illegal drugs were found within the curtilage of 251-A. It noted that “[t]he alleged illegal drugs may also be found to be in the curtilage of 251-B but this issue is not before the court.” The court suppressed all evidence found in 251-A or its curtilage, including the five pounds of marijuana.

The first inquiry is whether or not the search warrant issued for 251-B was based on probable cause.

An MCS officer who had received the information related by Agent Harvey applied for the warrant. His affidavit by itself apprised the issuing magistrate that the resident of the premises sought to be searched, Alejandro Espinoza, had been found at the airport in possession of a package, which he had wrapped himself a short time before with paper freshly purchased, containing a large amount of currency, that Alejandro was headed to a drug source city, and that those activities were typical of a drug courier. The magistrate also knew that an independent search warrant for the package itself (the validity of which has not been challenged) had already been executed.

In addition, “[n]ot only what is stated in the affidavit for the warrant but also the totality of the sworn circumstances before the magistrate may be considered in establishing probable cause. [Cits.]” Brown v. State, 151 Ga. App. 830, 831 (261 SE2d 717) (1979). The MCS officer also verbally informed the magistrate that the seized package had contained approximately $40,000 and that he had known marijuana traffickers do exactly what was done here, i.e., transport money by packaging it as a gift.

The search warrant for unit 251-B was based on ample probable cause. Compare State v. Porter, 167 Ga. App. 293 (306 SE2d 377) (1983), in which there was no knowledge of who lived on the premises or any information whatsoever that there were any controlled substances on the premises.

The more critical question is the scope of the warrant.

“A warrant which authorizes the search of a particular dwelling extends by implication to areas within the curtilage of the dwelling. ‘Curtilage’ has been defined as ‘the yards and grounds of a particular address, its gardens, barns, [and] buildings.’ [Cit.] ... [A] driveway is properly considered within the curtilage of the dwelling it services, at least where the driveway is located on the dwelling owner’s property.” Landers v. State, 250 Ga. 808, 809 (301 SE2d 633) (1983).

Certainly “the concept of curtilage is more easily applied to land surrounding a single-family dwelling than to common areas surrounding a multi-family dwelling. When the area in question is a common area serving multiple dwellings, it is less likely that the residents of any one unit have an expectation of privacy or reasonably consider the area to be an extension of the dwelling.” Bayshore v. State, 208 Ga. App. 828, 829 (432 SE2d 251) (1993). The undisputed facts here show that the driveway to the duplex inhabited by brothers, and its adjacent land, was within a common area curtilage which is reasonably an extension of each brother’s dwelling. The area was not excluded from unit 251-B’s curtilage merely because it was shared with unit 251-A.

As stated in Bayshore, supra at 829 (1), “ ‘ “[w]hether the place searched is within the curtilage is to be determined from the facts, including the proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.” [Cit.]’ ” See also Payton v. State, 177 Ga. App. 104,105 (1) (338 SE2d 462) (1985). The trial court even acknowledged that, if it were ruling on the curtilage of unit 251-B, it would conclude that the drugs were within its curtilage.

The court erred in its resulting legal conclusion, that the illegality related to unit 251-A precluded the independent legality of the seizure as related to unit 251-B. The marijuana having been within the curtilage also of unit 251-B, it was lawfully seized pursuant to the search warrant authorizing the search of that unit.

The grant of Lorenzo Espinoza’s motion to suppress is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., Cooper, Blackburn and Smith, JJ., concur in part and dissent in part.

Cooper, Judge,

concurring in part and dissenting in part.

I concur with the majority’s conclusion that probable cause existed for the search warrant for unit 251-B. However, I dissent as to its conclusion that the marijuana was found within the curtilage of unit 251-B and was thus lawfully seized pursuant to the search of that unit. I would hold that the trial court properly concluded that the drugs were found within the curtilage of unit 251-A for which law enforcement authorities had no search warrant. The undisputed evidence established that the duplex, which consists of two completely separate residences, was served by one driveway which split to partially encircle the duplex; that unit 251-A is on the left side of the duplex; and that the marijuana was found on the left side of the driveway, i.e., on unit 251-A’s side of the duplex. “ ‘The yard immediately surrounding one’s dwelling is well within the curtilage.’ ” Bunn v. State, 153 Ga. App. 270, 274 (2) (265 SE2d 88) (1980). I believe residents of a duplex do have an expectation of privacy in the curtilage surrounding their individual units; certainly, it stands to reason that if A lives on one side of a duplex, he would not anticipate that a neighbor on the other side of the duplex would store his possessions on A’s side of the duplex. Moreover, while the State argues that the marijuana was found within the common area of both units and that it was thus within the curtilage of unit 251-B and included in the search warrant for unit 251-B, oddly enough, the State did not charge Alex, the lessee of unit 251-B and the person to whom the search warrant was targeted, but instead charged Lorenzo, the lessee of unit 251-A with possession of the marijuana. I can think of no other reason for why the State would have charged Lorenzo with possession of the drugs and not Alex (the only person named in the search warrant) unless it considered the marijuana to be solely within the curtilage of Lorenzo’s unit. As noted above, I believe the evidence was properly suppressed because it was found within the curtilage of unit 251-A for which law enforcement authorities did not have a search warrant.

The majority, however, concludes that the marijuana was found “within a common area curtilage which is reasonably an extension of each brother’s dwelling” and relying on our decision in Bayshore v. State, 208 Ga. App. 828 (432 SE2d 251) (1993), holds that the marijuana was lawfully seized from the curtilage of unit 251-B. The majority further notes that it is irrelevant that the marijuana was also within the curtilage of unit 251-A. First, it hardly seems irrelevant that the marijuana was also found within unit 251-A’s curtilage since the lessee of that unit was the only one charged with possession of the marijuana. Second, contrary to the majority’s holding here, we held in Bayshore that “the common parking area was not part of the curtilage of the apartment and was not included in the search warrant issued in [that] case.” 208 Ga. App. at 829. The rationale behind our decision in Bayshore appears to be that residents of a multi-family dwelling have no reasonable expectation of privacy in a common area nor do they “reasonably consider the area to be an extension of the dwelling.” Id. The majority, however, while citing no authority other than Bayshore, holds that the common area where the drugs were found was “reasonably an extension of each brother’s dwelling.” I cannot adopt such reasoning since Bayshore appears to stand for the opposite proposition. Thus, even assuming the marijuana was not solely within unit 251-A’s curtilage but was within a common area shared by both units, under the authority of Bayshore, I would hold that the “common [yard] area was not part of the curtilage of [unit 251-B] and was not included in the search warrant issued in this case.” Id. For the foregoing reasons, I respectfully dissent.

I am authorized to state that Judge Blackburn and Judge Smith join in this dissent.

Smith, Judge,

dissenting in part.

While I join in Judge Cooper’s dissent, I write separately to comment on the deterrent purpose of the exclusionary rule and the standard of review this court is to apply in cases of this kind.

I would affirm the trial court’s ruling in all respects. There is no question that Lorenzo Espinoza’s Fourth Amendment rights were violated when police searched unit 251-A of the duplex. There is likewise no question that the contraband was found on the 251-A side of the building. Without more, it is clear that suppression of the evidence found would be proper.

“[I]n Michigan v. Tucker, 417 U. S. 433, 447 (94 SC 2357, 41 LE2d 182) (1974), the United States Supreme Court stated: ‘The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in wilful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.’ ” (Emphasis supplied.) State v. Patterson, 143 Ga. App. 225, 226 (237 SE2d 707) (1977).

Decided April 1, 1994

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellant.

Steve T. Woodman, for appellee.

“Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal. [Cit.]” Dean v. State, 250 Ga. 77, 80 (2a) (295 SE2d 306) (1982). This standard of review is to be applied regardless of whether the trial court’s ruling was to grant or deny a motion to suppress. Keeping in mind the remedial nature of the exclusionary rule, the fact that Lorenzo Espinoza’s Fourth Amendment rights were clearly violated, and the proper standard of review to be applied in considering rulings on motions to suppress, I am not prepared to hold that the trial court’s decision was clearly erroneous merely because there is an arguable basis for justifying the search as being within the curtilage of unit 251-B. The trial court determined as a matter of fact that the evidence was the product of the illegal search of unit 251-A rather than the legal search of unit 251-B. I would defer to the trial court’s determination on that matter since there is evidence to support it. Of course, I offer no opinion whether I would likewise affirm a contrary ruling by the trial court; that case is not now before us. In this case, I would merely find that the trial court’s ruling is not clearly erroneous, and that it therefore should be affirmed.

I am authorized to state that Chief Judge Pope joins in this dissent.


text:
    A93A1900.
    BORDEN, INC. et al. v. HOLLAND.
    (442 SE2d 916)
   Cooper, Judge.

We granted this discretionary appeal to determine whether the superior court erred in reversing the full board’s denial of benefits to claimant. At issue is the jurisdiction of the superior court to enter the order and the applicability of the one-year statute of limitation.

Claimant worked for Borden, Inc. as a milk delivery driver from 1969 through August 1990. On January 9, 1990, claimant injured his back while lifting a crate of milk. Claimant called his branch manager, Jimmy Bruce, and told him that his back was hurting. Mr. Bruce met claimant along his route and helped him finish his route and assisted claimant for the rest of the week. The following week claimant went to his doctor who advised that he was unable to work due to a low back injury. Claimant remained off work for approximately two months, during which time he applied for payment under appellant’s salary continuation plan. As part of his application, claimant submitted a physician’s statement which indicated that his injury was work related. When claimant submitted the form, Mr. Bruce told him that he could not receive workers’ compensation and his salary, and claimant changed the physician’s statement to indicate that his injury was not work related. When claimant returned to work, another employee assisted him on his route for approximately two weeks, after which time claimant resumed his regular duties without assistance. Claimant continued to experience pain in his back, and although he discussed the possibility of a lighter duty job with Mr. Bruce, no such job was ever offered to claimant. Claimant continued working until August 18, 1990 at which time he resigned because of the pain in his back.

On August 5, 1991, claimant filed a claim for workers’ compensation benefits. A hearing was held, and the administrative law judge ruled that claimant was entitled to workers’ compensation benefits. The full board reversed the award, finding that the claim was barred by the one-year statute of limitation. On December 8, 1992, claimant filed a notice of appeal to the Superior Court of Ware County with the full board. The case was scheduled for a hearing on February 23, 1993. However, both parties agreed to waive oral argument and submit the case on briefs. In an order dated February 10, 1993, the superior court reversed the full board.

1. Appellants first argue that the full board’s award was affirmed by operation of law when the superior court did not issue an order within 60 days of the filing of the notice of appeal. OCGA § 34-9-105 (b) provides, in relevant part, as follows: “The case so appealed may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record . . . provided, however, if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court. In the event a hearing is held later than 60 days after the date the notice of appeal is filed with the board because same has been continued to a date certain . . . the decision of the board shall be considered affirmed by operation of law if no order . . . has been entered within 20 days after the date of the continued hearing. If a case is heard within 60 days from the date the notice of appeal is filed, the decision of the board shall be considered affirmed by operation of law if no order . . . has been entered within 20 days of the date of the hearing.” It is undisputed that no hearing was scheduled within the 60-day time period allowed under the statute and that the superior court’s order was entered on February 10, 1993, sixty-four days after the filing of the notice of appeal. However, claimant argues that the superior court had until February 26, 1993, twenty days after the expiration of the 60-day period, to enter an order. We disagree. The statute does not cover the exact situation presented by this case where the parties waive the hearing. However, we have consistently held that where a hearing is not held or rescheduled in accordance with OCGA § 34-9-105 (b), the superior court loses jurisdiction of the case 60 days after the notice of appeal is filed with the board. See, e.g., Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (1) (404 SE2d 626) (1991); Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990). The purpose of OCGA § 34-9-105 (b) is “to expedite the disposition of workers’ compensation claims that have been appealed to the courts of this state.” Felton Pearson Co. v. Nelson, 260 Ga. 513, 514 (397 SE2d 431) (1990). With this purpose in mind, we decline to carve out an exception which gives the superior court more than the statutory 60 days to rule on a claim when the parties waive the hearing. Consequently, we conclude that since no hearing was held or order entered within 60 days after the notice of appeal was filed, the superior court lost jurisdiction of the case by operation of law and its order was a nullity. Synthetic Indus., supra at 637; see also Miller v. Merck & Co., 199 Ga. App. 722, 723 (405 SE2d 761) (1991).

Therefore, we reverse the judgment of the superior court and direct the court to vacate its order. See Miller, supra.

2. Since the trial court’s order was a nullity, it cannot serve as a basis for appeal to this court. See Synthetic Indus., supra. Therefore, we cannot address appellants’ remaining enumerations of error.

Judgment reversed with direction.

Beasley, P. J., concurs specially. Smith, J., concurs in judgment only.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Division 1 but not in Division 2. The posture of the appeal, and a consideration of who the appellants are vis-á-vis the proceedings below, render the remaining errors moot.

The appellants, employer Borden and its insurer, appealed from the order of the superior court, which was sitting as a court of last resort as a matter of right. Southeastern Aluminum Recycling v. Rayburn, 251 Ga. 365, 366 (306 SE2d 240) (1983). Their primary enumeration of error is that the court lacked jurisdiction to enter the order because, under OCGA § 34-9-105 (b), the time had expired for it to act. The majority agrees, and so do I.

That ends our review of that order; it was void ab initio. As noted in Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990), it cannot serve as a basis for appeal to this court. The exception to that is an instance such as this one, where the jurisdiction of the court to enter it is the issue appealed from; it is the only way to raise that question. See Nelson u. Felton Pearson Co., 195 Ga. App. 92 (392 SE2d 274) (1990), rev’d on another ground, 260 Ga. 513 (397 SE2d 431) (1990). Of course, the challenge to jurisdiction must be timely, which it was. Application was made under OCGA § 5-6-35 (d) within 30 days of the order’s entry.

Having decided that the court’s order was a nullity, the only decision which might be subject to further review is that of the board, derivatively, as the law has declared it to be “affirmed.” Appellants are not challenging that decision, for good reason; it is in their favor. None of their enumerations complain that the board erred in any way, nor would they. Appellants’ enumerations only challenge the superior court’s order. The remaining enumerations, relating to the merits of the court’s rulings, are moot because the court’s order was a nullity. They would only be reviewable if we concluded that the court’s order was not a nullity.

This court has held that “[a] case affirmed by operation of law pursuant to OCGA § 34-9-105 (b) can be appealed.” (Emphasis supplied.) Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (2) (404 SE2d 626) (1991). In that case, such an appeal was taken by the party against whom the board ruled, after that party’s application to this court was granted, and the court reviewed the merits.

In this case, however, the claimant, against whom the board ruled, did not apply to this court for review. He could have done so within 30 days after the board’s award became affirmed by operation of law. See Travelers Ins. Co. v. Adkins, 200 Ga. App. 278 (407 SE2d 775) (1991); Atlanta Family Restaurants v. Perry, 209 Ga. App. 581 (434 SE2d 140) (1993). He chose instead to rely on the void order of the superior court.

Thus, issues with respect to the board’s award may not be reached. We only granted permission to appeal from the order of the superior court, which was the only request made, and the notice of appeal filed by appellants Borden and its insurer covers only the superior court’s order.

Decided April 1, 1994.

Murphy & Sibley, R. Napier Murphy, for appellants.

William R. Little, for appellee.

Although this court dismissed the appeal in Synthetic Indus., supra at 638, the proper course is to reverse and vacate the order of the superior court for lack of jurisdiction. Nelson, supra. Thus, I concur in Division 1 and in the judgment. That leaves the statutorily “affirmed” decision of the board extant.

Although the statute’s predecessor was in effect in AT&T Technologies v. Barrett, 195 Ga. App. 675 (395 SE2d 22) (1990), the procedural posture of the parties and the applicability of the principle are the same. The only difference is that the superior court is no longer directed to affirm the board’s decision; it is accomplished by the law itself.

       This writer concurred in the judgment only, in Synthetic Indus., because of the nature of the suggested legislative remedy. This writer should have taken the same course in Coronet Carpets v. Reynolds, 199 Ga. App. 383, 384 (405 SE2d 103) (1991).

       The application was also within the period for appeal of the “affirmed” board decision. OCGA §§ 34-9-105 (d) and 5-6-35 (d).


author: Pope, Chief Judge.

text:
    A94A0850, A94A0851, A94A0852.
    MANNING v. MNC CONSUMER DISCOUNT COMPANY (three cases).
    (442 SE2d 919)
   Pope, Chief Judge.

W. Eugene Manning filed these pro se appeals from the trial court’s order finding him in contempt for refusal to comply with the trial court’s previous order to respond to MNC’s Consumer Discount Company’s (MNC’s) post judgment interrogatories.

1. Contrary to MNC’s motion to dismiss, a direct appeal may be taken from an order holding one in contempt of court. OCGA § 5-6-34 (a) (2); In re Booker, 186 Ga. App. 614 (367 SE2d 850) (1988).

2. However, the appeal in Case No. A94A0851 is subject to dismissal because the record in that case contains no appealable order or judgment.

3. Although Manning argues that his constitutional rights have been violated, he posits no argument as to why the trial court erred in holding him in contempt for failure to comply with its previous order to respond to MNC’s post judgment interrogatories. Consequently, the order appealed from in Case Nos. A94A0850 and A94A0852 is affirmed.

Appeal dismissed in Case No. A94A0851. Judgment affirmed in Case Nos. A94A0850 and A94A0852.

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

Decided April 1, 1994.

W. Eugene Manning, pro se.

Lamb & Associates, Andrew R. Bickwit, for appellee.


author: Beasley, Presiding Judge.

text:
    A94A0094.
    CURRY v. DAWSON COUNTY BOARD OF EDUCATION.
    (442 SE2d 919)
   Beasley, Presiding Judge.

We granted Curry’s application for discretionary appeal of an order which affirmed a decision of the State Board of Education upholding the termination of Curry’s contract of employment by the Dawson County Board of Education.

OCGA § 20-2-940 (a) is a section of what is known as the Fair Dismissal Act. (Ga. L. 1975, p. 360, § 1 et seq., as amended.) It is a portion of that part of the Act which deals with termination, suspension, nonrenewal, demotion, and reprimand of teachers, principals, and other employees under definite-term contracts. Of importance here is the scope of certain authorized reasons for termination, namely: “(6) To reduce staff due to loss of students or cancellation of programs; ... or (8) Any other good and sufficient cause.”

The local board voted to eliminate the position of Director of Support Services and Security, a system-wide administrative position responsible for supervising and coordinating services provided by non-professional and non-certified employees such as bus drivers and custodians.

Curry held this position for two of the three years he had been employed by the school system; He was notified by letter that the superintendent of schools would seek to have the board terminate his contract of employment with the school system and discharge him from employment effective at the end of the month. The letter stated that the reasons for the proposed discharge were reduction in force due to “cancellation of programs” as set forth in OCGA § 20-2-940 (a) (6) and “other good and sufficient cause” as set forth in OCGA § 20-2-940 (a) (8). The letter also stated that this action was taken as a result of a need to reduce the total amount of money allocated for administrative salaries because of budget constraints and a resulting reorganization of responsibilities and staff positions. The letter notified him of a hearing before the board.

At the hearing, the superintendent testified that this position was abolished for economic reasons. The board had been operating under a budget deficit and was in the process of building reserves as required by the State. There were also too many administrative personnel in the central office. This was the one administrative position which could be abolished and its job responsibilities reallocated among existing non-certified employees and the superintendent. Abolition of this position eliminated a salary of $51,608.64 from the school system for the 1990-91 school year, a position funded from local monies. This reduced the central office payroll by $25,000 for the 1991 fiscal year. The board voted unanimously to accept the superintendent’s recommendation.

Curry appealed to the State Board pursuant to OCGA § 20-2-1160. It rejected Curry’s argument that the elimination of positions does not amount to the “cancellation of programs,” and it sustained the local board’s decision. The State Board noted that the word “programs” is not a term of art and is defined as “a plan or system under which action may be taken toward a goal,” as well as “curriculum” or “courses offered by an educational institution.” See Webster’s Third New Intl. Dictionary, p. 1812 (1981). The State Board ruled that in the instant case, the local board eliminated the program of administering the support staff through a single administrative position. In the State Board’s view, a contrary holding would mean that a local board of education would be compelled to maintain a particular position indefinitely, once the position was created, and would be unable to experiment and determine the most efficient form of administration. The State Board noted that, contrary to Curry’s argument that a position cannot be eliminated in order to economize, the underlying purpose for authority to terminate teachers due to the loss of students or cancellation of programs is precisely to economize. The State Board also held that OCGA § 20-2-943 (a) authorized the local board to terminate appellant’s contract without moving him into other available positions.

1. The elimination of the system of centrally administering support services and security constituted the cancellation of an operational program under OCGA § 20-2-940 (a) (6). This resulted in the discontinuation of the position of director, warranting the termination of Curry’s contract.

“It is a well established principle of law that even though an interpretation of a statute by the agency charged with the duty of enforcing it is not conclusive, it is entitled to great weight. [Cit.]” Nat. Adv. Co. v. Dept. of Transp., 149 Ga. App. 334, 337 (2b) (254 SE2d 571) (1979). Even aside from this principle, we construe the statutory reason number six to cover Curry’s termination. The local board did not violate the law or grossly abuse its discretion in terminating Curry’s contract of employment while adding other administrative positions to perform different duties during this same time period. See generally Walker v. McKenzie, 209 Ga. 653, 656 (2) (74 SE2d 870) (1953).

We need not address the issue of whether elimination of this position for budgetary reasons because its job responsibilities could be performed by existing employees constitutes “other good and sufficient cause” under OCGA § 20-2-940 (a) (8).

2. Under OCGA § 20-2-943 (a) (1) (A), the board’s action was authorized even without placement of Curry in another position within the school system.

Curry was offered another available administrative position at the salary designated for that position, conditioned on his release of claims against the board. The salary for the other position was $8,000 to $9,000 less than what he had been earning, and he refused to accept it at a reduction in pay. There is no evidence that there existed any administrative position in the school system comparable to the abolished position.

Curry does not gain support from Hatcher v. Bd. of Public Ed. &c. for Bibb County, 809 F2d 1546 (11th Cir. 1987). Hatcher held that a school principal whose assignment to another position by a local board constituted a demotion had a legitimate claim of entitlement to remain in a comparable position, i.e., not to be demoted. See Ellis-Adams v. Whitfield County Bd. of Ed., 182 Ga. App. 463 (356 SE2d 219) (1987); OCGA § 20-2-942 (b) (1). Hatcher held that this legitimate claim of entitlement could not be denied without satisfying constitutional due process requirements. Hatcher, supra at 1552 (2). Curry, on the other hand, was terminated rather than demoted. He claimed an entitlement to remain in the same position, but the law does not require that it be continued in order to provide the holder of it with a job. Nor does it require the employer to place the employee elsewhere.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

Decided April 4, 1994.

Husby, Myers & Stroberg, W. Allan Myers, for appellant.

Harben & Hartley, Phillip L. Hartley, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A1933.
    DORSEY v. THE STATE.
    (442 SE2d 922)
   McMurray, Presiding Judge.

Via accusation, defendant was charged with carrying a dangerous weapon in a concealed manner, in violation of OCGA § 16-11-126 (a). He was tried and convicted by the trial court, sitting without a jury, and sentenced to 12 months on probation. This appeal followed the denial of defendant’s motion for a new trial.

The evidence adduced below demonstrates that on the night in question, the police heard what sounded like gunshots in a public housing area. They went to investigate and came upon four men, one of whom was defendant. The men spotted the police and started walking away in different directions. The police called upon the men to stop; they kept walking. Ultimately, the police stopped and frisked defendant; they discovered an instrument that was like a “scalpel” in his wallet. The “scalpel” was six inches long; the blade was an inch and a quarter long with a sharp edge of five-eighths of an inch. The “scalpel” did not fit entirely within the confines of defendant’s wallet; it protruded out from both sides. The police found the wallet (and the scalpel) in defendant’s pocket. Held:

1. Although he recognizes that OCGA § 16-11-126 (a) is not facially unconstitutional, Simmons v. State, 262 Ga. 674 (424 SE2d 274), defendant asserts the statute is void for vagueness as applied in this case. OCGA § 16-11-126 (a) provides: “A person commits the offense of carrying a concealed weapon when he knowingly has or carries about his person, unless in an open manner and fully exposed to view, any bludgeon, metal knuckles, firearm, knife designed for the purpose of offense and defense, or any other dangerous or deadly weapon or instrument of like character outside of his home or place of business. ...”

Defendant argues that the statute is vague as applied to the facts of this case because the “scalpel” was not a “knife designed for the purpose of offense and defense.” In this regard, he asserts that the words “any other dangerous or deadly weapon or instrument of like character” must be construed as being limited by the words: “designed for the purpose of offense and defense.” We cannot accept defendant’s argument.

Decided April 5, 1994.

Darryl K. Brown, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

“We have recognized that ‘mathematical certainty’ is not necessary in statutes. [Cit.] ‘(A) criminal statute is sufficiently definite if its terms furnish a test based on knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.’ [Cits.] In addition, the statute must be read as a whole, each phrase or word in conjunction with the other in order to determine the scope of prohibited activity. [Cit.]” Hargrove v. State, 253 Ga. 450, 451 (1), 452 (321 SE2d 104).

Reading the statute as a whole, we think persons of common intelligence would agree that the phrase “any other dangerous or deadly weapon or instrument of like character” is not limited by the phrase “designed for the purpose of offense and defense.” On the contrary, the phrase “any other dangerous or deadly weapon or instrument of like character” is a “catch all,” devised to ensure that dangerous or deadly weapons, i.e., firearms, bludgeons, metal knuckles, knives, etc., will be carried in an open, exposed manner.

The statute is not unconstitutionally vague as applied to the facts of this case. The mere fact that a scalpel is not designed for purposes of offense and defense, does not mean that it cannot be concealed as a dangerous or deadly weapon or instrument under certain circumstances. See generally Davis v. State, 184 Ga. App. 230, 231 (1) (361 SE2d 229); Harris v. State, 75 Ga. App. 199 (2) (43 SE2d 110). A scalpel in a physician’s bag may be just a scalpel; a “scalpel” in a pocket may be a concealed dangerous weapon.

2. Whether the “scalpel” met the definition set forth in OCGA § 16-11-126 (a) was a question for the finder of fact. Oliver v. State, 106 Ga. App. 493 (127 SE2d 325). It cannot be said that the trial court erred in answering that question affirmatively.

3. “There is no merit in defendant’s contention that the evidence does not establish the requisite mens rea or criminal intent. ‘ “Criminal intent does not mean an intention to violate the law or to violate a penal statute, but means simply to intend to commit the act which is prohibited by a statute.” [Cits.]’ [Cit.]” Carr v. State, 196 Ga. App. 397, 398 (396 SE2d 76).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

       In light of defendant’s assertion, we transferred this case to the Supreme Court of Georgia. Subsequently, the Supreme Court returned the case to this court.


text:
    A94A0471.
    SANDERS v. THE STATE.
    (442 SE2d 923)
   Birdsong, Presiding Judge.

James Sanders, Jr., appeals his conviction for armed robbery. Although also convicted of and sentenced for aggravated battery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, Sanders has asserted no error affecting those convictions. Further, Sanders was also convicted of aggravated assault, but the trial court merged that offense with the armed robbery conviction. The trial court then sentenced Sanders to serve life plus 30 years in prison. In one enumeration of error, Sanders contends the trial court erred by failing to charge the jury on the provisions of OCGA § 16-1-7; by allowing the jury to return a verdict finding him guilty of both aggravated assault and armed robbery; and by failing to enter a conviction on aggravated assault, the less serious offense. Held:

1. By alleging several issues in one enumeration of error, appellant has not followed the requirements of OCGA § 5-6-40. Hoffer v. State, 192 Ga. App. 378, 382 (384 SE2d 902). Moreover, because the argument portion of his brief consists of one continuing, unnumbered argument, he also has not followed the rules of this court. Court of Appeals Rule 15 (c) (1).

2. Sanders first argues that because he was charged both with robbery of the clerk and aggravated assault upon the person of the clerk with the intent to rob him, the trial court erred by refusing to give the following written request to charge: “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” As this charge concerns an issue which must be resolved by the court, not the jury, the trial court did not err by refusing to give the requested charge.

Appellant’s argument confuses the jury’s role in criminal trials with that of the trial court. Under our law, the jury has the responsibility to give a general verdict of guilty or not guilty. OCGA § 17-9-2. “ ‘Conviction’ is not the verdict; it is the judgment on the verdict or guilty plea. OCGA § 16-1-3 (4); Black’s Law Dictionary, p. 403 (4th ed. rev. 1968).” Leslie v. State, 211 Ga. App. 871, 872 (440 SE2d 757) (1994). Therefore, since OCGA § 16-1-7 (a) provides that one cannot be “convicted” of more than one crime arising from the same conduct, this Code section has no application to the verdict. “OCGA § 16-1-7 (a) permits the state to prosecute an individual for each crime his conduct established. It is the conviction of more than one crime established by the same conduct that § 16-1-7 (a) forbids.” Green v. State, 170 Ga. App. 594 (317 SE2d 609). Thus, OCGA § 16-1-7 (a) is inapplicable until a defendant has been found guilty of more than one crime established by the same conduct. Green v. State, supra; Chitwood v. State, 170 Ga. App. 599, 600 (317 SE2d 589). “The substantive aspect of double jeopardy precludes multiple convictions or punishments for crimes arising from the same criminal conduct. State v. Estevez, 232 Ga. 316, 317 (1) (206 SE2d 475) (1974).” Teal v. State, 203 Ga. App. 440, 441 (417 SE2d 666).

Consequently, the trial court correctly ruled that application of OCGA § 16-1-7 was a matter for the court and not for the jury. Further, Sanders’ reliance on Division 2 of Moreland v. State, 183 Ga. App. 113, 115 (2) (358 SE2d 276) is not well placed. First, of course, the statement that a charge based on OCGA § 16-1-6 (1) might be required is mere dicta, and, second, the statement appears to be incorrect. Whether a particular offense is a lesser included offense of another is an issue for the trial court to resolve, not the jury. See State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354); Harris v. State, 190 Ga. 258, 263 (9 SE2d 183); Griffin v. State, 154 Ga. App. 261, 275 (267 SE2d 867). Whether an accused is guilty of a particular lesser included offense, based on the evidence and proper charge by the court, is the issue for the jury. OCGA § 17-9-2.

3. Sanders’ contention that the trial court erred by allowing the jury to return a verdict finding him guilty of both aggravated assault and armed robbery is also without merit. “An accused may be prosecuted for each crime arising from the same conduct. The proscription is that he may not be convicted of more than one crime if one crime is included in the other. [OCGA § 16-1-7].” Estevez, supra at 320. Accord Dobbins v. State, 262 Ga. 161, 164 (415 SE2d 168). “In Estevez, supra, [our Supreme Court] interpreted [OCGA §§ 16-1-6 and 16-1-7] to mean that a defendant may be prosecuted for each crime arising from the same conduct, but may not be convicted of more than one crime if one crime is included in the other.” Addison v. State, 239 Ga. 622 (238 SE2d 411).

. 4. Appellant asserts also that the trial court erred by merging the aggravated assault offense, the less serious offense, with armed robbery. Although the trial court clearly did not err by so doing (Harmon v. State, 208 Ga. App. 271, 274-276 (430 SE2d 399)), Sanders is not entitled to assert this issue because his counsel specifically asked the trial court to merge the offenses in this manner. One cannot complain of a result he procured or aided in causing (Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696)), and induced error is not an appropriate basis for claiming prejudice. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). Therefore, this argument presents nothing for our consideration. Judgment affirmed. Cooper and Blackburn, JJ., concur.

Decided April 5, 1994.

John 0. Ellis, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory A. Adams, Assistant District Attorneys, for appellee.


text:
    A94A0288, A94A0563.
    HOUSTON v. BROWN (two cases).
    (443 SE2d 3)
   Birdsong, Presiding Judge.

We granted these discretionary appeals to determine whether the Columbia Superior Court erred in denying appellant Courtney Houston’s belated motion to dismiss a counterclaim in an action for modification of child visitation and erred in entering a subsequent protective order enforcing its judgment in favor of the counterclaim. The modification petition was filed by appellant Houston in Columbia County, the county of his former wife’s residence.

Both parties were awarded legal custody by the divorce decree. Appellee mother Tina Brown continued to live in Columbia County, while appellant Houston moved his residence at least twice. Appellant Houston did not move to dismiss appellee Brown’s counterclaim until a year after the trial court’s full hearing on the merits and ten months after a temporary order was issued. A motion to dismiss the counterclaim was filed before final order issued. The Columbia County court ruled favorably to the counterclaim. Held:

OCGA § 19-9-23 (a), (c) (2) provides that a complaint by a legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in the county of the defendant’s residence in compliance with Art. VI, Sec. II, Par. VI, and shall not be made as a counterclaim in response to an action or motion seeking to enforce a child custody order. These provisions are mandatory, but they are venue provisions and may be waived. Banning v. Banning, 245 Ga. 19 (262 SE2d. 788); Hopkins v. Hopkins, 237 Ga. 845, 847 (229 SE2d 751). In the peculiar and limited circumstances of this case, as in Daust v. Daust, 204 Ga. App. 29 (418 SE2d 409), we find that appellant father waived his defense to lack of venue by failing to file a motion to dismiss in a timely and expeditious manner. Waiver of venue defenses is permitted (albeit grudgingly; see Daust) in these cases despite the strong language of OCGA § 19-9-23; the particular reason for appellant’s failure to file a motion to dismiss does not mitigate the court’s consideration of the best interest of the children. Appellant’s failure to file a timely motion to dismiss has caused this custody battle to go on long enough.

Decided March 9, 1994

Reconsideration denied April 6, 1994

Loftiss, Van Heiningen & Ward, Walter E. Van Heiningen, for appellant.

Susan M. Reimer, Duard R. McDonald, for appellee.

Judgments affirmed.

Cooper and Blackburn, JJ., concur.