author: Banke, Presiding Judge.

text:
    A90A2166.
    TUTAK et al. v. FAIRLEY et al.
    (401 SE2d 73)
   Banke, Presiding Judge.

Acting on behalf of their minor son, Gregory, the appellants, Mr. and Mrs. Tutak, brought this action against the appellees, Mr. and Mrs. Fairley, seeking to recover for injuries Gregory had allegedly sustained when he was bitten by the appellees’ dog. The present appeal is from the grant of the appellees’ motion for summary judgment.

The appellees normally kept their dog, a 45-pound mixed breed German shepherd, chained to a doghouse in the backyard of their home; but at the time of the attack on Gregory, it had broken loose from its chains. Mr. Fairley testified that the animal had broken loose on several other occasions and that, while it had not previously bitten anyone, it had run out to the road and barked at passersby on those occasions. The appellees had owned the animal for some three years, and during that period they had never obtained a license for it, taken it to a veterinarian, or had it inoculated. Gregory was a guest at the appellees’ home and was playing with their son and other children in the front yard when the attack occurred. The dog approached the children, they began petting it, and it suddenly threw Gregory to the ground and began scratching and biting him about the face and head. Held:

OCGA § 51-2-7 provides as follows: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.”

At the time the incident occurred, the appellees were subject to a county ordinance which provided in pertinent part, as follows: “It shall be a violation of this ordinance for any owner or custodian of any dog classified as a ‘problem dog’ pursuant to the applicable provisions of this ordinance, to allow such a dog to run at large, within the urban area of Glynn County. . . .” The term, “problem dog,” was defined by the ordinance to include “any dog which does not possess a current certificate of vaccination, as provided for by the laws of the State of Georgia.” The ordinance further provided: “[A]ny dog is considered running at large and not under immediate control if he is not on a leash, not at heel, or not beside a competent person and obedient to that person’s commands. ... A dog is under control when he is confined within the property limits of his owner or custodian.” (Emphasis supplied.)

Decided January 9, 1991.

Robert H. Baer, for appellants.

Dickey, Whelchel, Brown & Readdick, John E. Bumgartner, for appellees.

While the appellees do not dispute that their dog was a “problem dog” within the definition of the ordinance, they contend that the animal was “confined within the[ir] property limits” at the time the attack occurred and therefore was not “running at large” within the contemplation of the ordinance. We disagree. Although the animal may have been physically within the boundaries of the appellees’ property at the time, it clearly was not “confined” there. The animal was thus required by the ordinance to be on a leash, at heel, or “beside a competent person and obedient to that person’s commands,” a condition which we view as equivalent to being “at heel.” We therefore conclude that the evidence of record does not negate the allegation that the dog had a vicious propensity within the contemplation of OCGA § 51-2-7; and we accordingly hold that the trial court erred in granting the appellees’ motion for summary judgment. See Fields v. Thompson, 190 Ga. App. 177 (378 SE2d 390) (1989).

Judgment reversed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A2249.
    HYNKO v. HILTON.
    (401 SE2d 324)
   McMurray, Presiding Judge.

Plaintiff Hilton’s complaint seeks damages from defendant Hynko for personal injuries suffered in a motor vehicle collision. The complaint alleges that the collision occurred because defendant was negligent in the operation of his vehicle.

Defendant’s answer denied the allegations of negligence and raised several defenses, including release, accord and satisfaction, and settlement of plaintiff’s claim. Following unsuccessful motions for directed verdict by both parties, issues arising from the allegations of a settlement of the case were submitted to the jury along with the underlying negligence claim.

The jury returned a verdict in favor of plaintiff in the amount of $60,000. Defendant appeals, enumerating as error the denial of his motion for directed verdict and certain portions of the jury charge. Held:

Following the collision on January 29, 1987, plaintiff, acting without an attorney, negotiated a settlement of his claims for damages to and towing of his vehicle with defendant’s insurer. Thereafter, plaintiff and his former wife, who is not a party to this action, hired attorney W. D. Simpkins III to represent them on their personal injuries claims. After hiring Simpkins about a week after the collision, plaintiff had no further contact with defendant’s insurer.

The contract for legal services between Simpkins, plaintiff and plaintiff’s former wife provided that no party shall enter into any settlement without the written consent of the remaining parties. While defendant’s insurer was informed that plaintiff had retained Simpkins to represent him on the personal injuries claim, there was no notice provided to the insurer of the terms of the contract between plaintiff and Simpkins, and particularly no notification that Simpkins lacked authority to settle plaintiff’s claim.

During the interval which followed, plaintiff received copies of correspondence showing that Simpkins was corresponding and negotiating with defendant’s insurer concerning plaintiff’s claim. When plaintiff inquired, Simpkins told him that he was still working on the case and had filed a complaint.

In January of 1989, plaintiff became suspicious and investigated the status of his case. At that time, plaintiff learned that in August of 1987, Simpkins had settled his and his wife’s claims for $6,000. Defendant’s insurer possessed a check payable to Simpkins, plaintiff and plaintiff’s former wife which had been endorsed and negotiated, as well as a release of all claims which appeared to have been executed by plaintiff and his former wife. It is uncontroverted that plaintiff never authorized the settlement in question and never received any of the proceeds therefrom. After learning of the settlement plaintiff acquired new counsel and filed this action.

Relying primarily upon Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544), defendant contends that plaintiff is bound by the agreement entered into by his attorney, Simpkins. Under Brumbelow v. Northern Propane Gas Co., supra, Simpkins had apparent authority to enter into a settlement agreement on behalf of plaintiff since the limitations on Simpkins’ authority to settle were not communicated to the opposing parties.

While plaintiff argues that defendant’s insurer should have known that Simpkins was not acting in furtherance of his client’s interest when he settled the claims for only $6,000 ($5,750 for plaintiff and $250 for plaintiff’s former wife) when liability was clear and damages substantially exceeded the settlement sum, such is not supported by the evidence. The uncontroverted evidence was that there was nothing suspicious to defendant’s insurer in the amount of the settlement, that it was not unusual for cases to settle for less than the amount of special damages, and that from the perspective of defendant’s insurer at the time of the settlement the amount of damages was only alleged and not proven with the certainty later established at trial.

Decided January 9, 1991.

Doremus & Jones, Bobby T. Jones, Robert S. Slocumb, for appellant.

Allen, Brown, Bruce & Dasher, Francis W. Allen, for appellee. .

“The rule that a principal is liable for the contracts of his agent applies even though the agent, in contracting, acts in his own interests and adversely to his principal, where the party with whom the agent contracts has no knowledge of the agent’s dereliction and is not cognizant of any fact charging him with knowledge thereof. . . . The principal, having selected his representative and vested him with apparent authority, should be the loser in such case, and not the innocent party who relied thereon. ...” 3 AmJur2d 777, Agency, § 274. See also Brunson v. Sparks, 42 Ga. 35.

Once more, we are bound by the decision in Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, supra. The trial court erred in denying defendant’s motion for directed verdict. Vandiver v. McFarland, 179 Ga. App; 411, 412 (346 SE2d 854). See also Wilson v. Anderson, 194 Ga. App. 167 (390 SE2d 86).

Judgment reversed.

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


author: McMurray, Presiding Judge. Carley, Judge,

text:
    A90A1548.
    DAVIS v. THE STATE.
    (401 SE2d 326)
   McMurray, Presiding Judge.

Defendant Donald Davis, alias Ronald Davis, alias Hunky Davis, appeals his convictions of violations of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute and possession of more than one ounce of marijuana). Held:

1. Defendant first challenges the denial of his motion to suppress evidence seized pursuant to a warranted search, contending that “there was no probable cause to believe that drug activity was taking place at the location described in the search warrant.”

The affidavit which was offered in support of the warrant for the search of defendant’s house provides, in pertinent part, as follows: “Within the past five (5) days affiant was contacted by a source who has never given information to lawenforcement [sic] officers in the past. Affiant believes the source to be truthful because it displayed a truthful demeanor when relaying the following, it is a mature person, regularly employed and gave information about [defendant] in such detail that it had to know of what is [sic] spoke. Within the pase [sic] seven (7) days the source was in the above described premeses [sic] with a subject known to the source as ‘Hunky Davis’ at which time it observed a quantity of cocaine in control of Davis and also records which Davis keeps concerning illegal drug transactions. The source also gave affiant specific information that Davis resides at 625 Reed St. S.E. Atlanta, Ga. and drives a blue Volvo Station Wagon also Davis’ telephone number is 584-8691. Affiant has personally observed the above premises and it is the same as described by the source and backed in the driveway was a blue Volvo Station Wagon. A check [of] Haines directory for the telephone number 584-8691 and the address 625 Reed St. S.E. show Ronald B. Davis residing there. Southern Bell telephone records show Ronald B. Davis having telephone number 584-8691 at 625 Reed St. S.E.”

“Assuming without deciding that the affidavit did not provide the issuing magistrate with probable cause to believe that contraband would be found in [defendant’s] residence, the exclusionary rule has nevertheless been ‘ “modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” ’ United States v. Leon, 468 U. S. 897, 905 (104 SC 3405, 82 LE2d 677) (1984). ‘It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination. . . . ’ United States v. Leon, supra at 921. ‘ “(A) warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search.” (Cit.)’ United States v. Leon, supra at 922. ‘In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.’ United States v. Leon, supra at 926.” Adams v. State, 191 Ga. App. 916 (383 SE2d 378).

In the case sub judice, there are no allegations that the magistrate abandoned his detached and neutral role in issuing the warrant for the search of defendant’s home. Further, there is no evidence that the affiant was dishonest or reckless in preparing the affidavit or that he could not have harbored an objectively reasonable belief in the existence of probable cause to search defendant’s residence. On the contrary, the evidence shows that the officer’s reliance on the magistrate’s determination of probable cause for the search of defendant’s house was objectively reasonable. Consequently, application of the exclusionary rule would have been inappropriate. See Debey v. State, 192 Ga. App. 512 (385 SE2d 694). The trial court did not err in denying defendant’s motion to suppress.

2. Next, defendant challenges the denial of his motion to suppress, arguing that the house searched is a “boarding house” and that “the warrant issued to search the premises was a general warrant which did not specify the subunits to be searched.”

“ ‘A search warrant for . . . (a) multiple occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminately.’ 2 LaFave, Search & Seizure, § 4.5 (b) at p. 78 (1978). If, however, neither the affiant nor investigating officers nor executing officers knew of or had reason to know of the structure’s actual multiple occupancy character until execution of the warrant was under way, and the outward appearance of the building reflects a single-occupancy structure, the warrant is not invalid for failure to specify a subunit within the building. Id. at 79. Compare Jones v. State, 126 Ga. App. 841 (192 SE2d 171) (1972).” Bing v. State, 178 Ga. App. 288 (1), 289 (342 SE2d 762).

In the case sub judice, the search warrant was executed for a “[w]hite wood framed house with screened porch . . . occupied by [defendant].” The law enforcement officer who secured the search warrant testified that he examined the exterior of the house before obtaining the search warrant; that the house appeared to be occupied only by defendant and a female co-defendant and that the house appeared to be a “single-family dwelling.” (The dual occupancy of the house confirmed information received from the informant that defendant and the female co-defendant “lived [at the house] as a husband and wife or girlfriend and boyfriend. . . .”) The officer explained that the search warrant was issued for the residence in defendant’s name only because a check of utility records did not indicate a need for the warrant to issue against the female co-defendant. These circumstances show that multi-family occupancy would not have been obvious- to a reasonably diligent law enforcement officer. Consequently, the search warrant was properly executed for the entire dwelling. See State v. Capps, 256 Ga. 14, 15 (3) (342 SE2d 676). This enumeration is without merit.

Judgment affirmed.

Sognier, C. J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I concur fully in Division 2 of the majority opinion and in the judgment of affirmance. With regard to Division 1 dealing with the denial of the motion to suppress evidence, I agree with the majority that even if the affidavit was not sufficient, the reasonable good faith reliance on the search warrant would allow the admission of evidence seized. United States v. Leon, 468 U. S. 897, 905 (104 SC 3405, 82 LE2d 677) (1984). However, it is my opinion that the affidavit itself passes muster under Illinois v. Gates, 462 U. S. 213, 234 (103 SC 2317, 76 LE2d 527) (1983). “Examination of the known contents of the affidavit in support of the warrant, using a totality of the circumstances test, reveals that the judge had a substantial basis for concluding that probable cause existed.” Williams v. State, 193 Ga. App. 677, 681 (388 SE2d 893) (1989).

Decided January 10, 1991.

John J. Lieb, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, David Wright, Richard E. Hicks, Assistant District Attorneys, for appellee.


author: Carley, Judge.

text:
    A90A1549.
    SHARPE v. GENERAL MOTORS CORPORATION.
    (401 SE2d 328)
   Carley, Judge.

Appellant-plaintiff purchased a vehicle which had been manufactured by appellee-defendant. After the vehicle developed certain mechanical problems which were not corrected to his satisfaction, appellant filed suit against'appellee, alleging claims for breach of warranty, fraud and violation of the Fair Business Practices Act (FBPA). Appellee answered, denying the material allegations of appellant’s complaint. Thereafter, appellant’s fraud and FBPA claims were resolved in appellee’s favor either on motion for summary judgment or on motion for judgment on the pleadings. Accordingly, the case was tried before a jury only as to appellant’s claim for breach of warranty. The jury returned a verdict in favor of appellant for compensatory damages and the trial court awarded appellant attorney’s fees pursuant to the Magnuson-Moss Warranty Act. He appeals from the judgment entered on the jury’s verdict and on the trial court’s award of attorney’s fees.

1. As to certain of appellant’s FBPA claims, the trial court granted appellee’s motion for summary judgment on the ground that appellant had failed to give appellee the requisite notice mandated by OCGA § 10-1-399 (b). This ruling is enumerated as error.

“It is well settled the question of sufficiency of notice is one for the court ([cits.]). . . . OCGA § 10-1-399 (b) provides that at least thirty days prior to the filing of any action, a written demand for relief be sent, ‘identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered. . . .’” (Emphasis supplied.) Paces Ferry Dodge v. Thomas, 174 Ga. App. 642, 643 (1) (331 SE2d 4) (1985). The record demonstrates that, in the only notice that was ever given appellee, appellant asserted the existence of certain defects in the vehicle, appellee’s failure to have corrected those defects, and a breach of warranty. It follows that the trial court correctly granted appellee’s motion for summary judgment as to such other alleged violations of the FBPA for which no notice was ever given. Compare Paces Ferry Dodge v. Thomas, supra at 643 (1); Colonial Lincoln-Mercury Sales v. Molina, 152 Ga. App. 379, 382 (9) (262 SE2d 820) (1979).

2. The trial court granted appellee’s motion for judgment on the pleadings as to appellant’s FBPA claims for which the requisite notice was given and this ruling is enumerated as error.

Insofar as the existence of defects in the vehicle which appellee failed to repair to appellant’s satisfaction is concerned, there is no “ ‘ “unfair or deceptive act or practice which had or has potential harmful effect on the general consuming public. . . .” ’ [Cit.] If we grant that every other element necessary to maintain an action under the FBPA [could be] proved, nevertheless, the situation [with regard to] this [claim] involved [two defects] in one vehicle, which defectfs] [were] apparently not visited on the consuming public. . . . All we have ... is a defective car, a car less than perfect, but no unfair or deceptive act imposed upon the consumer marketplace.” (Emphasis omitted.) DeLoach v. Gen. Motors, 187 Ga. App. 159, 160 (5) (369 SE2d 484) (1988). “ ‘The FBPA is no panacea for the congenital ills of the marketplace (and) does not instantly convert every alleged breach of contract into a violation of the (act.)’ . . . [Cit.] . . . [Appellant] contended only that [his vehicle] was not [repaired] in accordance with the [warranty] contract. ... [As to] this [claim, the allegations are of] only an ‘isolated’ breach of contract in that appellee’s future performance was not as originally provided in the contract. [Cit.] This is a plain breach of contract case, and the trial court was correct in granting [judgment on the pleadings] on [this] FBPA claim.” (Emphasis in original.) Gross v. Ideal Pool Corp., 181 Ga. App. 483, 485 (1) (352 SE2d 806) (1987). See also Burdakin v. Hub Motor Co., 183 Ga. App. 90 (357 SE2d 839) (1987).

3. Contrary to appellant’s contentions, the Magnuson-Moss Warranty Act does not give rise to an independent claim against appellee under the FBPA. Insofar as it is relevant here, that federal statute merely relates to damages, not liability, and provides for consumers’ recovery of costs and attorney’s fees in successful actions for breaches of warranty under state law. See Freeman v. Hubco Leasing, 253 Ga. 698, 703 (2) (324 SE2d 462) (1985). “The Magnuson-Moss Warranty Act authorizes recovery by a consumer (who prevails in an action for damages for failure of a supplier, warrantor or service contractor to comply with any obligation under a written or implied warranty or service contract) of actual costs and expenses, including attorney fees. 15 USCA § 2310 (d) (2).” (Emphasis supplied.) Freeman v. Hubco Leasing, supra at 705 (4). Therefore, the trial court corrrectly granted judgment on the pleadings as to appellant’s purported FBPA claim against appellee based upon the provisions of the Magnuson-Moss Warranty Act.

Decided January 10, 1991.

Blount, Garcia & Singh, Udai V. Singh, for appellant.

King & Spalding, Charles H. Kirbo, Sandra E. Strippoli, Chilton D. Varner, for appellee.

4. Appellant also urges that, in violation of the FBPA, appellee failed to disclose the existence of and made deceptive misrepresentations about the availability of a mediation/arbitration program. However, appellant’s complaint did not allege this as an FBPA violation, but did so only in connection with his fraud claims. The trial court’s grant of summary judgment on appellant’s fraud claim has not been enumerated as error in this appeal. Accordingly, this contention presents nothing for review.

5. In connection with appellant’s breach of warranty claim, the trial court also granted partial summary judgment in favor of appellee as to the non-recoverability of damages for loss of use of the vehicle. The terms of appellee’s warranty expressly excluded a recovery of consequential damages (other than for injury to the person) as a remedy for its breach and this exclusion is not unconscionable. Thus, the trial court’s grant of partial summary judgment was correct. Fiat Auto U. S. A. v. Hollums, 185 Ga. App. 113, 114 (2) (363 SE2d 312) (1987).

6. Appellant further enumerates as error the trial court’s award of attorney’s fees under the Magnuson-Moss Warranty Act. Appellant’s contention is that the trial court erroneously failed to award attorney’s fees based upon actual time expended.

The Magnuson-Moss Warranty Act “ ‘permits the court to exercise its judgment (1) to award no [attorney’s] fees, or (2) to award [attorney’s] fees based on time only, or (3) to award [attorney’s] fees pursuant to its discretion.’ . . . [Cit.] . . . ‘ “[0]nly in the case of clear abuse of discretion by the trier may we interfere.” [Cits.]’ [Cits.] ... We find . . . that the trial court did not abuse its discretion in awarding attorney[’s] fees in favor of [appellant] for the amount set forth. [Cits.]” (Emphasis supplied.) Fleetwood Motor Homes of Pa. v. McGehee, 182 Ga. App. 151, 152-153 (1) (355 SE2d 73) (1987).

Judgment affirmed.

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


text:
    A90A1629.
    JOHNSON v. THE STATE.
    (401 SE2d 331)
   Carley, Judge.

Appellant and a co-defendant were jointly tried before a jury on charges of armed robbery and robbery by intimidation. Although the co-defendant was acquitted of all charges, appellant was found guilty of robbery by intimidation and he appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Construed to uphold the verdict, the evidence is not merely sufficient, it is overwhelming. A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of robbery by intimidation beyond a reasonable doubt. Williams v. State, 171 Ga. App. 624 (320 SE2d 546) (1984).

2. “Appellant asserts that his rights were violated because he did not have an attorney present at a pre-indictment lineup, even though he had requested one. ‘ “There is no constitutional right to counsel at a pre-indictment lineup. [Cits.]”’ [Cits.]” Fudge v. State, 164 Ga. App. 392, 393 (3) (297 SE2d 329) (1982). Accordingly, a motion to exclude evidence of both the pre-trial and the in-court identification of appellant on this ground was correctly denied. Harris v. State, 168 Ga. App. 159, 160 (1) (308 SE2d 406) (1983). The evidence of record also supports the trial court’s determination that the procedures used during the lineup were neither unnecessarily suggestive nor conducive to irreparably mistaken identification. See Coleman v. State, 160 Ga. App. 158, 159 (2) (286 SE2d 494) (1981).

3. To the extent that appellant requested a change in the courtroom seating arrangements so as to protect the confidentiality of his privileged communications with counsel, the trial court granted the request. To the extent that appellant urges on appeal that the trial court erred in failing, without request, to order more extensive changes in the courtroom seating arrangements, nothing is presented for decision. “ ‘ “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. (Cits.)” (Cits.)’ [Cits.]” Iglesias v. State, 191 Ga. App. 403, 404 (381 SE2d 604) (1989).

4. After invocation of the rule of sequestration, the trial court, in the exercise of its discretion, was authorized to permit the chief investigating officer to remain and assist in the orderly presentation of the State’s case. “ ‘[T]he rule as fixed by [OCGA § 24-9-61,] . . . as to the sequestration of witnesses, confer [s] upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case.’ ” Spurlin v. State, 222 Ga. 179, 180-181 (2) (149 SE2d 315) (1966). See also Norman v. State, 255 Ga. 313, 316 (3) (338 SE2d 249) (1985). Likewise, it was not an abuse of the trial court’s discretion to permit this witness to testify after having heard the testimony of other witnesses for the State. Law v. State, 165 Ga. App. 687, 691 (4) (302 SE2d 570) (1983).

Decided January 10, 1991.

Towery, Thompson, Gulliver & Bunch, Jeffrey D. Bunch, Linda B. Borsky, for appellant.

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

5. Although the admission into evidence of the audiotaped custodial statement of appellant’s co-defendant is enumerated as error, appellant failed to object to the introduction of this evidence. “ ‘ “We will not presume error from a silent record. The (appellant) has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. (Cit.)” (Cit.)’ [Cit.]” Smallwood v. State, 193 Ga. App. 807, 809 (1) (389 SE2d 390) (1989). A review of the record reveals that appellant not only failed to object but that he insisted on a transcript of the taped statement being given to each juror. “Thus, error, if any [in the admission of this evidence], was self-induced and provides no basis for reversal. [Cit.]” Fitzgerald v. State, 193 Ga. App. 76, 78 (7) (386 SE2d 914) (1989).

6. Although the co-defendant filed a written motion to sever, appellant never filed his own motion, never joined in the co-defendant’s motion, and in fact, argued against severance. Accordingly, appellant’s enumeration of error predicated upon the refusal of the trial court to sever is without merit. Coachman v. State, 236 Ga. 473, 474 (1) (224 SE2d 36) (1976).

7. In order to secure appellate review of a purported violation of OCGA § 17-8-75, it is necessary to object in the trial court to the allegedly prejudicial comment at the time it is made. Hudson v. State, 250 Ga. 479, 484 (4) (299 SE2d 531) (1983). In the only apparent instance wherein appellant did raise an objection, the trial court promptly sustained the objection and, as requested, gave curative instructions to the jury and an admonition to counsel. Appellant “is left with nothing ‘to complain about on appeal as he asked for no further relief.’ [Cit.]” White v. State, 255 Ga. 210, 214 (7) (336 SE2d 777) (1985).

Judgment affirmed.

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


text:
    A90A1644.
    McQUEARY v. ATLANTA AIRLINES TERMINAL CORPORATION.
    (401 SE2d 333)
   Carley, Judge.

Appellant-plaintiff brought suit against appellee-defendant, alleging claims for malicious arrest, malicious prosecution and false imprisonment. The trial court granted appellee’s motion for summary judgment on all claims and appellant appeals.

1. Appellant urges that a genuine issue of material fact remains as to his claims for malicious arrest and malicious prosecution.

“ ‘Malicious prosecution differs from malicious arrest only in that in the former case there must be a carrying on of the prosecution.’ [Cit.] In either action, however, it is essential to show [the absence of probable cause]. [Cits.]” Hatcher v. Moree, 133 Ga. App. 14 (1) (209 SE2d 708) (1974). Accordingly, if appellee met its burden of showing that no genuine issue of material fact remained as to the existence of probable cause for appellant’s arrest and prosecution, the trial court correctly granted summary judgment as to those claims.

The evidence, construed most favorably for appellant, shows the following: On the date of his arrest, appellant was an airline pilot. In order to park in a special lot at the airport, he and other airline employees were required to show a valid employee identification card and to display a parking “medallion.” The medallions were issued by appellee in its capacity as operator of the parking lot. Appellant had been issued medallion Number 02423. However, the medallion that was displayed on the rearview mirror of his automobile was numbered 03333. Appellant was detained at the gate to the parking lot because medallion Number 03333 had been reported as stolen. Appellant’s only explanation for this suspicious circumstance was that he had been issued the displayed medallion by his employer about one month earlier. A police officer was called to the scene and, after it was determined that appellant had not been issued medallion Number 03333, he was arrested for theft by receiving stolen property. At the time of appellant’s arrest, appellee was already in the process of swearing out warrants for the arrest of three others who had been found in possession of stolen medallions.

“ ‘Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court.’ [Cits.] The material facts in this case were essentially undisputed. Therefore, whether or not probable cause existed was for determination by the court. [Cit.] . . . ‘ “[T]he question is, not whether [appellant] was guilty, but whether [appellee] had reasonable cause to so believe — whether the circumstances were such as to create in the mind of [appellee] a reasonable belief that there was probable cause for the prosecution. (Cit.) Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was prosecuted.” ’ [Cit.]” (Emphasis in original.) Melton v. LaCalamito, 158 Ga. App. 820, 823-824 (2b) (282 SE2d 393) (1981).

Since it is undisputed that appellant was in possession of the recently stolen medallion, appellee correctly contends that “it could not be said that there was no reasonable cause to believe that [appellant] was guilty of a crime.” McMillan v. Day Realty Assoc., 159 Ga. App. 366, 367 (283 SE2d 298) (1981). Appellant, on the other hand, contends that appellee had an obligation to investigate further before actually arresting him. “ ‘The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification.’ [Cit.]” Melton v. LaCalamito, supra at 824 (2b).

The evidence is undisputed that, prior to the arrest, appellee did verify that the medallion possessed by appellant had been reported stolen and that appellant had been issued a different medallion. In these circumstances, appellee was clearly not required to believe appellant’s explanation that he had been issued the medallion in his possession, which explanation was in fact untrue. See Fisher v. Kentucky Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877) (1985). Compare Melton v. LaCalamito, supra at 824 (2b). Insofar as appellant’s explanation implies his lack of knowledge that the medallion in his possession was one which had been stolen rather than the one which had been issued to him, such a lack of knowledge “was not capable of independent verification. ... If there was probable cause to believe that appellant was [guilty of theft by receiving stolen property], appellee cannot be held civilly liable for requiring that a jury in a criminal proceeding determine the credibility of [his] explanation. . . . [Cit.]” Arnold v. Eckerd Drugs of Ga., 183 Ga. App. 211, 212-13 (358 SE2d 632) (1987). Compare Atlantic Zayre v. Meeks, 194 Ga. App. 267, 269 (1) (390 SE2d 398) (1990). No genuine issue of material fact remains as to the existence of probable cause for appellant’s arrest.

Appellant urges a genuine issue of material fact nevertheless remains as to his malicious prosecution claim because, “subsequent to [his] arrest, appellee acquired further information tending to show that its earlier assessment of the existence of probable cause was erro-

Decided January 10, 1991.

neous. [Cit.]” Arnold v. Eckerd Drugs of Ga., supra at 213. In this regard, appellant relies upon the fact that the medallion which had been issued to him was found in another car shortly after his arrest. However, this only raises the inference that the actual medallion which had been issued to him had been lost, stolen, sold or given away. It does not provide an exculpatory explanation for appellant’s possession of the stolen medallion. What it does provide is a possible motive for appellant’s procurement of a stolen medallion since appellee charged $25 or $35 for replacement medallions. Appellant also relies upon a subsequent, general report received by appellee regarding the existence of a scheme whereby medallions would be taken from vehicles and replaced by stolen or lost medallions. However, this evidence in no way indicates that appellant was necessarily a victim of this scheme rather than a participant therein. Moreover, although there is no evidence regarding the timeliness, the extent or the success of any further investigation of the report by appellee, the evidence does show that a nol. pros, was entered less than three months after appellant’s arrest and less than two months after the accusation was filed. There is no. evidence of appellee’s receipt of further information tending to show error in the earlier assessment of probable cause for appellant’s prosecution, as opposed to his guilt. “ ‘The mere fact that the prosecution was abandoned . . .is not sufficient to prove malice or want of probable cause.’ [Cit.]” Sloan v. Glaze, 72 Ga. App. 415, 419 (5) (33 SE2d 846) (1945).

“The uncontroverted evidence clearly shows the existence of probable cause for the arrest and prosecution of [appellant]. [Cits.] The existence of probable cause defeats [appellant’s] action for false arrest and malicious prosecution. [Cits.]” Nunnally v. Reveo Discount &c. of Ga., 170 Ga. App. 320 (1) (316 SE2d 608) (1984).

2. “Although the [grant] of [appellee’s] motion [on appellant’s claim for false imprisonment] was enumerated as error, the arguments of both sides were devoted exclusively to the [malicious arrest and malicious prosecution claims]. Under Rule [15] (c) (2) of this court ([cit.]), enumerations of error not supported by argument or citation of authority are deemed abandoned. . . . The [grant] of [appellee’s] summary judgment motion [on appellant’s claim for false imprisonment] will, therefore, not be considered.” Baker v. NEI Corp., 144 Ga. App. 165, 167 (2) (241 SE2d 4) (1977).

3. Appellant’s remaining enumerations of error have been rendered moot by our holding in Division 1.

Judgment affirmed.

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

Oliver, Duckworth, Sparger & Winkle, David P. Winkle, for appellant.

Long, Weinberg, Ansley & Wheeler, James S. Strawinski, Yvette M. Chapman, for appellee.


text:
    A90A1828.
    DRUCKMAN et al. v. ETHRIDGE et al.
    (401 SE2d 336)
   Carley, Judge.

Appellant-plaintiffs utilized the professional accounting services of appellee-defendants in connection with the formation and registration of a corporation. Subsequently, appellants brought suit, alleging that appellees had “agreed to file a corporate Subchapter S election with the Internal Revenue Service within the prescribed period for filing” and that appellees “were negligent... by reason of their failure to file the corporate Subchapter S election after being directed to do so, and after agreeing to do so.” The trial court granted appellees’ motion for summary judgment on the basis that the expert affidavit filed in connection with appellants’ complaint was insufficient to meet the pleading requirements of OCGA § 9-11-9.1. Appellants appeal from this grant of summary judgment in appellees’ favor.

1. We note at the outset that a failure to comply with the pleading requirements of OCGA § 9-11-9.1 would not authorize the grant of summary judgment. See Robinson v. Starr, 197 Ga. App. 440, 441 (2) (398 SE2d 714) (1990). However, we will address the merits of this appeal as if the trial court had dismissed appellants’ complaint rather than granted summary judgment in appellees’ favor.

2. Appellants did not contend below and do not now contend on appeal that their action against appellees is based upon simple negligence rather than professional malpractice. Accordingly, we are not called upon to decide whether or not appellants were obligated to comply with the pleading requirements of OCGA § 9-11-9.1. Compare Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499 (397 SE2d 294) (1990); Razete v. Preferred Research, 197 Ga. App. 69 (397 SE2d 489) (1990); Brown v. Durden, 195 Ga. App. 340 (393 SE2d 450) (1990). The only matter presented for resolution is whether or not appellants’ compliance with the statutory pleading requirement was sufficient.

3. After outlining his professional qualifications, the expert affiant stated as follows: “I have reviewed the complaint to be filed in this action. In my opinion [appellees] were negligent by failing to file the Subchapter S election which is the subject matter of this case. Regarding the factual basis of this claim, I understand that [appellees] were instructed to file such an election and omitted to do so. It is generally recognized within the profession that a failure to follow such an instruction does not satisfy the ordinary standard of care owed by certified public accountants to their clients.”

Decided January 10, 1991.

Henry & Pearson, J. Hue Henry, for appellants.

Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, John P. Mac Naughton, for appellees.

“What OCGA § 9-11-9.1 (a) requires is that the expert affidavit set forth specifically at least one negligent act or omission ‘claimed to exist’ and the factual basis for each such claim. In this regard, it should be noted that unlike other witnesses, expert witnesses often give testimony concerning hypothetical facts posed to them. In addition, although factual allegations in an affidavit ordinarily should be positively alleged as being true and within the affiant’s personal knowledge, factual allegations of the affiant, based upon information or belief, are sufficient where either expressly or impliedly authorized by the statute. [Cits.] It is unnecessary for the . . . plaintiff to . . . prove the alleged facts. . . . Under the statute, where a . . . complaint asserts a damage claim and alleges professional malpractice, it is only necessary that there be filed contemporaneously with the filing of the complaint the affidavit of an expert stating that, in his expert opinion, such facts, if true, would constitute professional malpractice. . . . ‘The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.’ ” (Emphasis supplied.) Housing Auth. of Savannah v. Greene, 259 Ga. 435, 438-39 (5 & fn. 3) (383 SE2d 867) (1989).

It is clear that the expert affidavit attached to appellants’ complaint meets this standard. An expert affidavit filed with a complaint pursuant to OCGA § 9-11-9.1 need not be based upon the affiant’s actual personal knowledge. To the contrary, the affiant may base his expert opinion upon an assumption that the factual allegations of the complaint are true, just as he could base his expert opinion at trial upon an assumption of the truth of the evidence adduced to support those allegations. It follows that the trial court erred in finding that the expert affidavit submitted by appellants failed to meet the pleading requirements of OCGA § 9-11-9.1.

4. Appellants also enumerate as error the trial court’s failure to consider an amendment to their expert’s affidavit. This enumeration is rendered moot by our holding in Division 3.

Judgment reversed.

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


text:
    A90A1893.
    A90A2110.
    NICHOLS v. THE STATE. ATHA v. THE STATE.
    (401 SE2d 338)
   Carley, Judge.

After being jointly tried before a jury, appellants were both found guilty of aggravated battery. Each filed a separate notice of appeal from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt. As companion cases, the two appeals are hereby consolidated for appellate disposition in this single opinion.

Case No. A90A1893

1. Appellant Nichols gave an incriminating statement to the investigating officers. Before this statement was admitted into evidence at the joint trial, the incriminatory references to the co-defendant’s participation in the crime were edited therefrom. Appellant enumerates as error the admission of the edited version of his statement into evidence.

Editing appellant’s statement to delete the incriminatory references to his co-defendant was mandated by Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). Appellant makes no contention that his statement was edited so as to delete any exculpatory or mitigating references to his own criminal culpability. See United States v. Kershner, 432 F2d 1066, 1072 (10) (5th Cir. 1970). Accordingly, there was no error in admitting into evidence the edited version of appellant’s statement.

2. Appellant filed a pre-trial motion to suppress a baseball bat which had been seized from the back seat of his automobile, which he was occupying when he was arrested on the day after the victim had been severely beaten.

“ ‘(W)hen a policeman has made a lawful, custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ [Cits.] Appellant was arrested . . . before the passenger compartment of his automobile was searched. The search was therefore legal so long as the arrest itself was legal.” Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986). Appellant was arrested pursuant to a warrant and he makes no contention that the arrest itself was illegal. Accordingly, the motion to suppress was correctly denied.

3. The State moved for a continuance based upon the absence of one of its witnesses. The trial court’s grant of this motion for a continuance did not constitute reversible error. See generally Smith v. State, 154 Ga. App. 541 (1) (268 SE2d 768) (1980).

Decided January 10, 1991.

Wayne L. Burnaine, for appellant (case no. A90A1893).

D. Warren Auld, for appellant (case no. A90A2110).

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

4. The failure to give, without written request, a charge on self-defense is enumerated as error. However, there was no evidence to authorize a finding that the commission of an act which would otherwise constitute the crime of aggravated battery was justified as an act of self-defense. See Hale v. State, 135 Ga. App. 625, 627-628 (2) (218 SE2d 643) (1975). Accordingly, it was not error to fail to give the unrequested charge. See Carter v. State, 150 Ga. App. 119, 120 (4) (257 SE2d 11) (1979).

Case No. A90A2110

5. Appellant Atha enumerates as error a purported violation of OCGA § 15-12-131. A review of the record clearly demonstrates that this enumeration of error is without merit. Perez v. State, 258 Ga. 343, 344 (2) (369 SE2d 256) (1988).

6. The trial court did give a correct charge on the meaning of the concept of “rendered useless” as employed in OCGA § 16-5-24 (a), and it was not error to refuse to give appellant’s written request for an incorrect charge on the meaning thereof.

7. Appellant’s remaining enumerations have been considered and are either moot by virtue of our holdings in the companion case or otherwise have no merit.

Judgments affirmed.

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


author: Sognier, Chief Judge.

text:
    A90A1953.
    POPOOLA v. THE STATE.
    (401 SE2d 344)
   Sognier, Chief Judge.

Tajudeen K. Popoola was charged with failure to yield, driving with a suspended license, and driving without proof of insurance after an automobile accident. He pleaded guilty to the first two charges and a nolle prosequi was entered on the latter charge. He filed a notice of appeal, and enumerated as error the trial court’s conclusions that appellant was driving with a suspended license and without insurance.

Decided January 10, 1991.

Robert L. Twitty & Associates, Robert L. Twitty, for appellant.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

A defendant may appeal from the entry of a judgment on a plea of guilty only if the question on appeal is one that may be resolved by facts appearing in the record. E.g., Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). Here, there is no challenge to the voluntariness of appellant’s plea, compare Lewis v. State, 191 Ga. App. 509 (382 SE2d 207) (1989), the trial court did not make the finding of fact alleged as error because appellant pleaded guilty instead, and there is no transcript of the hearing below from which any appealable error may be discerned. As a result, we cannot consider appellant’s enumeration of error concerning his plea of guilty to the charge of driving with a suspended license. Similarly, the court made no factual finding concerning the charge of driving without insurance, as that charge was nol prossed. Appellant makes no challenge to the entry of the nolle prosequi, compare McIntyre v. State, 189 Ga. App. 764-765 (1) (377 SE2d 532) (1989), and we note that he cannot present a valid challenge here, as entry of a nolle prosequi may be made without the defendant’s consent prior to the attachment of jeopardy. Id. at 765 (2). Accordingly, this appeal presents nothing for our review.

Appeal dismissed.

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


text:
    A90A2059.
    HUTTO v. THE STATE.
    (401 SE2d 339)
   McMurray, Presiding Judge.

Defendant was convicted in a bench trial of the offense of criminal issuance of a bad check. She appeals, asserting the conviction was not supported by the evidence.

Reviewing the transcript of the trial, we find the following: H & M Construction Company (“H & M”), a partnership consisting of David Hutto and Evelyn McSilkey, performed work at Lake Hartwell pursuant to a contract with the “Army Corps of Engineers.” Pursuant to a written contract, H & M subcontracted with Danny Wilson and Mark Milford to cut grass around the lake. Wilson and Milford were partners and they furnished the equipment and labor for the job.

Ordinarily, H & M paid Wilson and Milford in the middle of the month for work performed during the preceding month. H & M issued checks to Wilson (who “would get a 1099 from H & M”) and Wilson paid Milford (who “would get a 1099 from [Wilson]”).

On August 9, 1986, a Saturday, Milford went to H & M’s office. He heard that H & M had lost its contract with the “Army Corps of Engineers” and he wanted to be paid. At that time, H & M owed Wilson and Milford for work performed during the latter half of June and all of July.

Hutto informed Milford that he did not have any company checks but that he could give Milford a personal check. Hutto then turned to his wife, the defendant, and told her to write a check to Wilson.

The defendant was not an employee of H & M. She had no connection with H & M other than the fact that she was married to David Hutto. Nevertheless, she issued a personal check made payable to Wilson in the amount of $13,115.

According to the defendant, Hutto and a former secretary of H & M, the defendant told Milford she did not have sufficient funds to cover the check. Milford denied he was told any such thing.

Milford and Wilson telephoned the bank on Tuesday, August 12, 1986, to see if the check was good. They called back about eight or nine days later. Ultimately, four to six weeks later, the check was presented for collection. It was not honored.

In the meantime, Milford and Wilson met with Hutto and H & M’s attorney to see if they could work things out. The attorney testified that he asked Milford why he would accept a check which he knew was not good and that Milford replied: “I thought it would be better to have a check than to have nothing at all.” Neither Milford nor Wilson recalled the attorney’s question. Held:

“A person commits the offense of criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” OCGA § 16-9-20 (a). Did the defendant give a check in exchange for (1) a present consideration or (2) wages?

1. “Present consideration . . . means that the check must be in exchange for something of value. [Cit.]” Griffith v. State, 249 Ga. 19, 20-21 (287 SE2d 187). Thus, “it must be proved that the party alleged to have been defrauded suffered loss resulting from its reliance on the defendant’s wrongful act as charged in the indictment.” Hamilton v. State, 118 Ga. App. 842 (1) (165 SE2d 884). “However, the requisite of ‘present consideration’ may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction.” Bowers v. State, 248 Ga. 714, 715 (285 SE2d 702).

In Griffith v. State, supra, the defendant operated a gasoline service station. He issued three checks to Thomas Oil Company to pay for gasoline delivered to the station. One check was issued on December 12, 1978, to pay for gasoline delivered the same day. A second check was issued on January 24, 1979, for deliveries made on January 16, 1979, and January 18, 1979. The third check was issued on February 8, 1979, for gasoline delivered on February 5, 1979. The evidence demonstrated that the defendant would write checks for the gasoline if he was at the station at the time of delivery. If the defendant was not at the station, an invoice was left for him with no arrangement for payment. The Supreme Court held that the second and third checks issued by that defendant were not for a present consideration inasmuch as they did not evidence a single contemporaneous transaction.

We find Griffith v. State, supra, to be applicable to the facts of this case. The course of dealings between H & M and Wilson and Milford showed that H & M ordinarily issued a check to Wilson in the middle of the month for services performed in the preceding month. And the check in question was issued on August 9, 1986, for work performed in June 1986, and July 1986. It cannot be said that the circumstances surrounding the issuance of this check constituted a single contemporaneous transaction. Griffith v. State, supra; Bowers v. State, supra. Compare Ledford v. State, 184 Ga. App. 556 (362 SE2d 133); Gilley v. State, 182 Ga. App. 681 (356 SE2d 655).

2. The Georgia courts have yet to define the term “wages” as it appears in OCGA § 16-9-20. The Code section itself offers no definition of the term. Accordingly, we will define the term in light of common law principles, see Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429 (1) (254 SE2d 375), bearing in mind that penal statutes must be construed strictly. Marchman v. State, 173 Ga. App. 257, 259 (325 SE2d 879).

In the absence of a statutory definition, the term “wages” connotes an employer and employee relationship. See Sarah Coventry, Inc. v. Caldwell, supra; Meakins v. Huiet, 100 Ga. App. 557, 559 (112 SE2d 167). Inasmuch as neither Wilson nor Milford were employees of H & M, it cannot be said that the check issued by defendant was given in exchange for wages.

3. Under the particular facts and circumstances in the case sub judice, a rational trier of fact could not have found beyond a reasonable doubt that the check issued by defendant was given “in exchange for present consideration or wages.” OCGA § 16-9-20 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Marchman v. State, supra. Accordingly, defendant’s conviction must be reversed.

Judgment reversed.

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

Decided January 10, 1991.

Charles D. Strickland, for appellant.

Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assistant District Attorney, for appellee.


text:
    A90A2136.
    A90A2137.
    MARYLAND CASUALTY INSURANCE COMPANY, INC. v. JOHNSON. MARYLAND CASUALTY INSURANCE COMPANY, INC. v. FAGLIER.
    (401 SE2d 75)
   McMurray, Presiding Judge.

Appellees Johnson and Faglier were injured while riding as passengers in an automobile owned by Jessie Cole. The automobile was insured by appellant Maryland Casualty Insurance Company, Inc., pursuant to an insurance policy issued to Jessie Cole’s husband, David P. Cole. By letters dated July 18, 1989, appellees made demand upon appellant for optional PIP (personal injury protection) benefits. Subsequently, appellees filed these actions for optional PIP coverage, a 25 percent penalty, punitive damages, and attorney fees, alleging that appellant failed to properly offer optional PIP in compliance with OCGA § 33-34-5 (b).

The superior court granted partial summary judgments in favor of appellees, respectively, on the issue of entitlement to optional PIP coverage, finding that the application for insurance was defective in two regards, that David P. Cole, the named insured, failed to sign the application and that the statement required by OCGA § 33-34-5 (b) is not in bold faced print. Appellant appeals from the partial grants of summary judgment in favor of appellees. Held:

There is no evidence that David P. Cole, the policyholder, has ever claimed or paid for optional benefits under the policy or that he has ever authorized anyone to do so in his behalf. “This court has repeatedly held that a ‘demand for increased coverage by the policyholder is necessary before those who would be incidental or third-party beneficiaries as “other insureds” can seek optional benefits.’ Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706, 708 (309 SE2d 870) (1983). See also Waco Fire &c. Ins. Co. v. Goudeau, 178 Ga. App. 426 (1) (343 SE2d 131) (1986); Occidental Fire cfee. Co. v. Buyce, 173 Ga. App. 881, 882 (328 SE2d 574) (1985); Vandergriff v. Travelers Ins. Co., 172 Ga. App.. 198 (322 SE2d 522) (1984).” Allen v. Indus. Indent. Co., 181 Ga. App. 31 (351 SE2d 251). “In Government Employees Ins. Co. v. Mooney, [250 Ga. 760 (300 SE2d 799)], the Supreme Court addressed the issue of whether a guest passenger was entitled to recover optional PIP benefits under the rationale of Flewellen v. Atlanta Cas. Co., [250 Ga. 709 (300 SE2d 673)]. The court held that ‘where the insured has made his demand and tendered the premium, other insured persons under the policy have standing to make claims by submitting proof of loss.’ . . . Mooney, supra at 762-763. This court interpreted and applied Mooney in Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706 (309 SE2d 870) (1983). In that case, we noted that there is a fundamental distinction between an insured/applicant/policyholder and a person who incidentally becomes an ‘insured’ when he is injured under circumstances covered by another’s insurance policy. While the former ‘insured’ is a party to the contract, the latter ‘insured’ is not. Although an insurance policy may provide for optional PIP benefits ‘from its inception’ under Flewellen, the insurer’s obligation to pay those benefits does not arise until the insured/policyholder — as contrasted to an incidental ‘insured’ — demands the higher coverage and tenders his premium therefor. Accordingly, we held that ‘a demand for increased coverage by the policyholder is necessary before those who would be incidental or third party beneficiaries as “other insureds” can seek optional benefits.’ Bailey, supra at 708. Accord Dobbins v. Occidental Fire & Cas. Co., 171 Ga. App. 98 (319 SE2d 31) (1984).” Occidental Fire &c. Co. v. Buyce, 173 Ga. App. supra at 882 (1). The superior court erred in granting partial summary judgments in favor of appellees.

Decided January 10, 1991.

Fulcher, Hagler, Reed & Obenshain, Wiley S. Obenshain III, Mark C. Wilby, for appellant.

Bell & Bell, David B. Bell, for appellees.

Judgments reversed.

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


author: Pope, Judge.

text:
    A90A2223.
    DEPARTMENT OF HUMAN RESOURCES v. PRINCE.
    (401 SE2d 342)
   Pope, Judge.

Appellant, the Georgia Department of Human Resources (DHR), brought a petition under the Child Support Recovery Act (CSRA), OCGA § 19-11-1 et seq., to recover unreimbursed public assistance benefits paid by Aid to Families with Dependent Children (AFDC) on behalf of the two minor sons of appellee Rickey L. Prince. Prince’s wife and mother of the children is deceased and, pursuant to a cüstody agreement between Prince and the children’s maternal grandmother, the children reside with her. The custody agreement further provided that the children were receiving Social Security benefits as dependents of the deceased mother, and that they “shall continue to be entitled to those Social Security benefit monies which are as child support. . . .” The grandmother received $788 in AFDC benefits for the children’s support over and above the Social Security payments. The trial court found that under the custody agreement Prince was relieved of any obligation to reimburse DHR for any AFDC benefits paid to his children, and denied relief. DHR brings this direct appeal from that order. We reverse.

1. Prince has filed a motion to dismiss the appeal, alleging that under OCGA § 5-6-35 (a) (6) and Department of Human Resources v. Johnson, 175 Ga. App. 610 (333 SE2d 845) (1985), an application for appeal is required and thus this direct appeal is improper. According to Johnson, “this type of case is one seeking collection of a debt and requiring discretionary appeal procedures only where the judgment is $2,500 or less, pursuant to OCGA § 5-6-35 (a) (6).” Id. at 611-612. In City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986), the Supreme Court established that “OCGA § 5-6-35 (a) (6) sets out the proper method of appeal from monetary judgments ranging from one cent to $2,500.” As explained by this court in Whitley v. Bank South, 185 Ga. App. 896, 897 (1) (366 SE2d 182) (1988), the discretionary appeal procedure “is applicable only where the appellant is seeking to appeal a money judgment for an amount ranging from 1 [cent] through $2,500, and not, as in this case, where the appellant has sought a money judgment but has obtained no recovery whatever.” Accordingly, jurisdiction is appropriate in this direct appeal and the motion to dismiss is denied.

2. DHR contends that the trial court erred in interpreting the custody agreement to preclude a recovery of public assistance reimbursement. Prince argues that the ruling was correct because our Supreme Court has held that a parent is entitled to receive credit towards his child support obligation for Social Security benefits paid on his behalf. Perteet v. Sumner, 246 Ga. 182 (269 SE2d 453) (1980); Horton v. Horton, 219 Ga. 177 (132 SE2d 200) (1963). However, both Perteet and Horton are distinguishable from the present case.

In both of those cases, the court permitted the father to credit his Social Security disability benefits, which were received by the mother for the benefit of the children, toward his obligation under the alimony decree. In the instant case, the children receive survivor’s benefits on behalf of the deceased mother, not the appellee father. As to these benefits, the father “ ‘is a mere trustee charged with the duty of seeing that they are applied solely for the benefit of the children ....’” Law Office of Tony Center v. Baker, 185 Ga. App. 809, 810 (366 SE2d 167) (1988). Since Prince gave up nothing, he should receive no credit for allowing the children the continued use of these funds under the custody agreement. By crediting him with the benefits attributable to the deceased mother, the trial court has allowed the father to waive his joint and several obligation to support the children under OCGA § 19-7-2, and to contribute nothing toward their well-being. Cf. International Indent. Co. v. Collins, 258 Ga. 236 (1) (367 SE2d 786) (1988).

Nor can the grandmother agree to waive the children’s rights to the funds or the father’s duty to support them, just as their mother could not if she were alive. “One parent cannot contract away the right of a child to be supported by the other parent, and such a provision . . . waiving a child’s right to support is void. [Cits.]” Collins v. Collins, 172 Ga. App. 748, 749 (324 SE2d 475) (1984). “Child support is the right of the child and not of its custodian; ‘(n)either the wife nor the civil courts can take away this right that inheres expressly in the children.’ [Cit.] The conduct of the custodian cannot deprive the child of this right to support, any more than the custodian can waive it for the child or contract it away. [Cits.]” Stewart v. Stewart, 160 Ga. App. 463-464 (287 SE2d 378) (1981). See generally Brooks v. Carson, 194 Ga. App. 365 (2) (390 SE2d 859) (1990).

The purpose of the CSRA is “ ‘to provide that public assistance to needy children is a supplement’ to the parental contribution, and ‘to provide for the enforcement of an able parent’s obligation to furnish support.’ OCGA § 19-11-2 (a).” Cox v. Dept, of Human Resources, 255 Ga. 6, 7 (334 SE2d 683) (1985). Prince should not be permitted to benefit from the trial court’s failure to inquire into the adequacy of the children’s support. Obviously the Social Security benefits the children were receiving were insufficient to support them fully since they had to meet the definition of dependent children in order to receive the AFDC benefits. OCGA § 49-4-101 (2).

“ ‘[M]inor children are entitled to support during their minority commensurate with their proven customary needs, limited only by the financial ability of the parent against whom the support is sought to provide for them; they are not merely entitled to subsistence.’ (Footnotes omitted.) [Cit.]” Conley v. Conley, 259 Ga. 68, 70 (5) (377 SE2d 663) (1989). Since it was necessary for DHR to provide public assistance to the children in lieu of Prince’s support, it had the right to seek reimbursement therefor. “The state has a real interest in recovering payments which would not have been made had the responsible parent lived up to his duty, and the purpose of [OCGA §§ 19-11-6 through 19-11-8] is to secure that reimbursement. To the extent that the state paid public assistance on behalf of a child which would not have been made had the responsible parent [made] support payments, the state is entitled under the assignment provided for in [OCGA § 19-11-6] to be reimbursed for its excess payments. . . .” Department of Human Resources v. Bagley, 240 Ga. 306, 307 (240 SE2d 867) (1977).

Decided January 10, 1991.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Edwards & Krontz, J. Steven Dominy, Jennifer McLeod, for appellee.

Accordingly, we conclude that the trial court erred in ruling that the custody agreement relieved Prince of any obligation to reimburse DHR for the AFDC payments made on behalf of his children.

Judgment reversed. Motion to dismiss denied.

Beasley and Andrews, JJ., concur.


text:
    A89A1747.
    MADDEN et al. v. BELLEW et al.
    (402 SE2d 374)
    Decided January 11, 1991.

      E. Freeman Leverett, for appellants.

      R. Dale Perry, Hudson & Montgomery, James E. Hudson, for appellees.
   Pope, Judge.

It appearing that the Supreme Court has reversed on certiorari that portion of this court’s judgment affirming the judgment of the trial court as is contained in Division 2 of the above-styled case which is reported at 195 Ga. App. 131 (393 SE2d 31) (1990), that portion of this court’s opinion and judgment is hereby vacated and the opinion and judgment of the Supreme Court at 260 Ga. 530 (397 SE2d 687) (1990), is made the opinion and judgment of this court.

Judgment reversed.

Sognier, C. J., and Banke, P. J., concur.


text:
    A90A1675.
    EMRICH v. WINSOR et al.
    (401 SE2d 76)
    Decided January 14, 1991.

      Cornelison & Associates, Rex P. Cornelison III, for appellant.

      Albert R. Sacks, for appellees.
   Carley, Judge.

Appellant-plaintiff brought the instant action against appelleedefendants, alleging a civil claim for treble damages under both the federal and the Georgia RICO statutes. After a period of discovery, appellees moved for summary judgment and their motion was granted. Appellant appeals from the order of the trial court granting summary judgment in favor of appellees.

Liability under both the federal and the Georgia RICO statutes is dependent upon the showing of a “pattern of racketeering activity.” Consistent with the federal statute, Georgia law defines a “pattern of racketeering activity” as “engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents. ...” OCGA § 16-14-3 (8). The alleged “pattern of racketeering” relied upon by appellant in the instant case consists of the sale to himself and a co-investor of an interest in a single investment. Appellant apparently contends that, because appellees ultimately induced two investors to participate jointly in this single investment, the requisite “pattern of racketeering” is shown. However, viewed in the light most favorable to appellant, the evidence shows merely two joint victims of one isolated transaction and this is not sufficient to establish a pattern of proscribed activity. See Cobb v. Kennon Realty Svcs., 191 Ga. App. 740, 741 (2) (382 SE2d 697) (1989). Compare State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988). The trial court correctly granted summary judgment in favor of appellees as to appellant’s RICO claims.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A90A1540.
    THOMAS v. THE STATE.
    (401 SE2d 345)
   Cooper, Judge.

Appellant was found guilty by a jury of trafficking in cocaine. He appeals.

The evidence presented showed that agents of the Metro Drug and Vice Squad were operating in the metropolitan Atlanta area attempting to purchase contraband drugs from dealers. When undercover agent Michael Dull contacted Dewayne “Top” Varner to arrange a purchase of cocaine, Varner told Dull to meet him the next night at a bar to make the buy. When Dull met Varner in the bar, Varner took him outside and introduced him to appellant. Appellant agreed to contact an acquaintance of his, who appellant knew to be a drug dealer and who would sell Dull the cocaine. Then, appellant drove in one car and Dull and Varner drove in another car to a grocery store where they were met by the dealer, who had the drugs in his automobile. The dealer gave a sample to appellant, who took it to Dull for approval. Dull then got out of the car and opened the trunk, which was a signal to the undercover officers present to make the arrest. Varner absconded and was never apprehended, but the dealer and appellant were arrested and charged.

On appeal, appellant contends that the evidence against him was not sufficient to allow a rational trier of fact to find proof of his guilt beyond a reasonable doubt; that the trial court erred in allowing Dull to testify about his “impressions” as opposed to his “observations”; and that the trial court erred in overruling appellant’s objections to the State’s questioning appellant as to whether he was a party to or aided and abetted the crime.

Appellant testified on direct and on cross-examination that he knew he was possessing cocaine, that on the night he was arrested he was involved in selling cocaine; that he was “setting up a deal, introducing two people,” that he assisted and encouraged the sale by making telephone calls, that he had an ounce of cocaine in his pocket, and that it did not bother him to help move four ounces of cocaine because he was hooked on it himself. “ ‘A defendant’s admission in open court is an admission in judicio, and the factfs] therein stated may be taken as true without further proof. . . . Such judicial admission is conclusive. ... In view of the defendant’s admission of guilt any alleged errors in the [admission of testimony] must be considered as harmless error.’ [Cit.] ‘ “Where in a criminal case not only the evidence but the defendant’s statement demanded the verdict rendered, a new trial will not be granted, even though the judge may have committed errors in his charge to the jury, in rulings on evidence, and in refusing to order a mistrial. ... If the jury reached the only result which was legally possible in the case, the judgment of the trial judge will not be reversed merely for the purpose of allowing the case to be heard again, in order that the same result may be more technically reached.” [Cit.]’ [Cit.]” Smith v. State, 150 Ga. App. 498 (258 SE2d 167) (1979); Waters v. State, 195 Ga. App. 288 (2) (393 SE2d 280) (1990).

Judgment affirmed.

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

Decided January 15, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert E. Statham III, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge.

text:
    A90A1636.
    HOUSTON v. DEAL.
    (401 SE2d 562)
   Birdsong, Presiding Judge.

Appellant W. L. Houston sued Tilman Deal for trespass and wilful tortious damage to Houston’s property. Deal countersued, claiming the subject property was a road which belonged to him by operation of law because it bounded his property. The trial court granted summary judgment to Deal, by authority of Johnson & Co. v. Arnold, 91 Ga. 659 (18 SE 370). Held:

We reverse the summary judgment. This case is not controlled by Johnson & Co. v. Arnold, but by Rolleston v. Sea Island Properties, 254 Ga. 183, 187 (327 SE2d 489).

All this land originally belonged to W. L. Houston. In 1980 appellant Houston carved out five acres and sold it to Deal. The deed described the property sold as “containing 5. acres, and being bounded as follows: North by a 30 foot strip of land reserved for road purposes; West by other lands of W. L. Houston; South by other lands of W. L. Houston; and East by a 30 foot strip of land reserved for road purposes.” The subject 30 foot strip of land reserved for road purposes which bounded the east land line of Deal’s property remained woodland. In 1981, the “30 foot strip of land reserved for road purposes” which bounded the north land line of Deal’s property was deeded by appellant to Pierce County to be used for public access to the Alapaha River, and become known as Money Hole Road. In 1984, the property to the east of the “30 foot strip of land reserved for road purposes” on Deal’s east boundary was deeded by appellant to his grandson, Dewayne Johnson.

Thus, the 30 foot strip of land in question in this case sits between Tilman Deal’s property to the west and Dewayne Johnson’s property to the east, and extends from Money Hole Road south to lands of appellant Houston. Deal’s property and Johnson’s property both front on Money Hole Road.

In 1988, appellant and Deal agreed to share the expense of erecting a fence between Deal’s property and this strip of land, but while appellant was erecting the fence, Deal’s wife came onto the strip of property and said her husband would not help pay for the fence. After appellant built the fence, Deal’s wife again informed appellant they would not help pay for it. Shortly thereafter, Deal entered upon the strip of land and cut down several pine trees which fell upon the fence and destroyed it. After appellant brought suit, Deal’s answer and counterclaim claimed ownership or easement to the 30 foot strip of property which appellant had “reserved for road purposes” on the east boundary of Deal’s land.

According to Johnson & Co. v. Arnold, when property is conveyed as “bounded” by, or with the “boundary” of, a certain road, the buyer takes at least an easement in the road. However, the Supreme Court in Johnson & Co. v. Arnold premised its holding upon the presumed intent of the parties: “When, therefore, the owner of the whole fee in a tract conveys the tract, bounding it by a road . . . and not expressly declaring in the conveyance whether he retains the fee in the road or not, [he] may very well be understood as intending to . . . pass the fee to the middle line of the road when the vendor owns the fee on both sides. . . .” (Emphasis supplied.) Id. at 667.

It seems to us that if a person owning property in this state wishes to convey some of it to another but wishes to create, as a boundary, a strip to be used for road purposes reserved in himself, there should be no reason why he cannot do so. There are ways in which a locked-in landowner can acquire an easement for a road, but Deal’s property fronts on Money Hole Road and is not locked in. Of course, a landowner can acquire an easement by user of such an adjoining road in an appropriate case, but this is not such a case. Although the 30 foot strip was “reserved” by Houston for road purposes, it was not a road but had trees growing on it and he kept cows on it. Since he “reserved” the land, he could use it for his private road purposes or not, but since he did “reserve” it, the statement in the deed that he did so “for road purposes” did not amount to an agreement to let Deal use it or to deed half of it to him. Deal had never used it as a road nor sought to use it, so he is estopped from claiming that he had acquired an easement to a “road.” Rolleston v. Sea Island Properties, supra at 185.

The Supreme Court in Rolleston, recognized that the statements made in Johnson & Co. v. Arnold were based on the theory that where the description in the deed is not certain, that is, if the grantor did not expressly in the deed reserve the title and right to control the area in question, it may be concluded that the parties to the conveyance “generally intend that the grantee obtain title to a street designated as bounding his land. [Cit.]” Rolleston, supra at 187. So, the statement in Johnson & Co. v. Arnold, supra at 668, that “a road as a boundary is the road as an easement, together with such land, or interest in land, as is necessary to full enjoyment of the easement,” is distinguished here. As in Rolleston, supra, it does not apply because the grantor, Houston, in describing “a road as a boundary,” did not leave the language uncertain but stated that the boundary was “reserved.” He might have “reserved” it for any purpose under the sun, including to graze his cows or to dig a useless trench, or for his own use as a private road to his properties to the south. The real or proposed existence of a private road on a boundary does not ipso facto render it subject to the use of all who live near or by the place.

Decided January 16, 1991.

Francis Houston, for appellant.

John R. Thigpen, Sr., for appellee.

Moreover, lest any question remain as to intent, the affidavits produced by the appellant in response to Deal’s motion for summary judgment show without dispute that the parties did not intend for the boundary to be used freely by Deal; that he never used it as a road, did not need to use it as a road, and never asked to use it as a road; and, since his five acres front onto Money Hole Road there seems no reason for him to go on it. The strip leads only to Houston’s properties to the south. Houston “reserved” it for himself for road purposes, but never made it into a road. Until Deal decided to claim it for himself after he had agreed with Houston to build a fence between his property and the strip, there was no indication that Deal ever thought he should have a right to use a road there. It was not the defendant, Deal, to whom summary judgment should have gone in this case. The cases which Deal cites (Johnson & Co. v. Arnold, supra; Tietjen v. Meldrim, 169 Ga. 678 (151 SE 349); Martin v. First State Bank &c. Co., 231 Ga. 511 (202 SE2d 447)), are cases where the deeds setting out “a road as a boundary” were not clear, as this one is, that the road, if there was one, was “reserved” by the grantor.

Judgment reversed.

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


text:
    A90A1757.
    MERRITT v. CITY OF ALBANY.
    (401 SE2d 567)
   Banke, Presiding Judge.

This appellee initiated condemnation proceedings to acquire certain property owned by the appellant, and a special master entered an award valuing the property at $27,500. Being dissatisfied with that valuation, the appellant appealed to superior court for a de novo trial on the issue of compensation. That trial, which was conducted without a jury, ended with a determination by the superior court that the property was worth only $8,000. In this appeal from the denial of his motion for new trial, the appellant’s sole contention is that the trial judge erred in not allowing him to introduce certain property tax returns into evidence for impeachment purposes. Held:

Decided January 16, 1991.

I. Allen Meadors, B. J. Smith, for appellant.

Leonard Farkas, for appellee.

The appellant was not represented by counsel during the trial of the case, and the only evidence introduced on the issue of the property’s value consisted of the testimony of the appellee’s appraiser, in whose opinion the property was worth $8,000. This witness was not questioned about any tax returns, and it is therefore not apparent how the evidence at issue could have served to impeach him. Compare Housing Auth. of Atlanta v. Republic Land &c. Co., 127 Ga. App. 84 (2) (192 SE2d 530) (1972); State Hwy. Dept. v. Raines, 129 Ga. App. 123 (3) (199 SE2d 96) (1973). Moreover, the tax returns were not tendered as evidence; and it does not, in fact, even appear that the appellant had copies of them in his possession which he was prepared to tender. Consequently, the appeal presents nothing for review. Accord George v. D’Angelo, 171 Ga. App. 433, 434 (2) (319 SE2d 874) (1984).

Judgment affirmed.

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


text:
    A90A1795.
    PAGE v. THE STATE.
    (401 SE2d 564)
   Birdsong, Presiding Judge.

Joseph Page appeals his conviction for two counts of distribution of cocaine. The evidence showed that on two certain occasions police gave an informant money to buy cocaine and observed the informant enter appellant’s house. On the first occasion the informant was equipped with a recording device but the recording of the transaction was very vague and general. The informant was searched before he entered appellant’s house on the second occasion, and was given money; upon leaving appellant’s house, he was searched again and found to possess cocaine but no money. This time, the recording device malfunctioned and there was no recording of the transaction. The informant testified that on each occasion it was appellant who sold him cocaine in appellant’s house.

Appellant contends the evidence was insufficient to support the verdict and complains that there was a break in the chain of custody of the drug sample and that he was not allowed to cross-examine the forensic expert as to the activities of a person in the state crime lab. Held:

Decided January 16, 1991.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.

1. Appellant in essence contends the jury should not have believed the testimony of the paid informant, who was a drug user. However, it is not within our province to judge the credibility of witnesses, or to say that as a matter of law a drug user is not a credible witness. On appeal we are required to view the evidence in a light most favorable to the verdict. Rios v. State, 193 Ga. App. 485, 486 (388 SE2d 527). Not only was it the prerogative of the jury to find credible the informant’s identification of the appellant as the drug seller, but moreover his testimony does not stand alone but is supported by evidence that it was appellant’s house in which the witness acquired cocaine. Considering the evidence in a light most favorable to the verdict, we find that any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Rios, supra.

2. Appellant’s contentions concerning an attempt to show a break in the chain of custody of the cocaine are without substance. There is no suggestion of tampering or substitution of the evidence, and none is raised by the fact that the forensic witness was not the person who received the sample from a transporting officer but merely collected it from the lab vault. See Kent v. State, 157 Ga. App. 209 (276 SE2d 881). No suggestion of tampering is raised by vague allusions in appellant’s brief about some unknown activities of a certain person who allegedly worked in the state crime lab. Appellant does not even allege what the forensic witness could have said about such person if he had been allowed to cross-examine her on the matter; in any case the witness stated she did not know anything about that person’s activities and therefore nothing could be gained by questioning her. Appellant has the burden of showing not only harm but actual error. Smallwood v. State, 193 Ga. App. 807, 809 (389 SE2d 390).

Judgment affirmed.

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


text:
    A90A1812.
    ECHOLS v. TRUST COMPANY BANK.
    (401 SE2d 565)
   McMurray, Presiding Judge.

On or about October 13, 1987, James E. Glover, an elderly gentleman stricken with cancer, went with his niece, defendant Louise E. Williamson, and with his sister, Cornelia Callaway, to defendant Trust Company Bank and opened two bank accounts on which all three persons were listed as parties to the account. At the bank, the three individuals signed account agreements and signature cards which stated that all joint accounts belonged to all depositors as joint tenants with right of survivorship.

Plaintiff Echols, acting in his capacity as executor of the estate of James E. Glover, filed this action against defendants Williamson and Trust Company Bank. Plaintiff’s complaint alleges that the new bank accounts were opened and that defendant Williamson was added to the accounts due to his decedent’s failing health for the sole purpose of expediting payment of Glover’s bills and related expenses and that no gift of money was made to her. The complaint also alleges that shortly before and after Glover’s death defendant Williamson withdrew funds from the accounts and converted them to her personal use. In four counts of the complaint plaintiff seeks to make defendant Williamson account for the funds removed from the accounts and pay damages for the amount removed.

This appeal is concerned with the fifth count of plaintiff’s complaint which seeks to recover damages from defendant Trust Company Bank for alleged negligence in permitting defendant Williamson to remove funds from the accounts after being apprised of the dispute. Defendant Trust Company Bank’s motion for summary judgment was granted and plaintiff appeals from this grant of summary judgment to defendant Trust Company Bank. Held:

As under pre-existing law a distinction must be recognized, under OCGA § 7-1-810 et seq., between the liability of a depository bank and conflicting claims between third parties to the funds deposited. See Clark v. Bridges, 163 Ga. 542, 546 (136 SE 444) and OCGA § 7-1-811. The controversy between plaintiff and defendant Williamson, which is not at issue in this appeal, is governed by OCGA § 7-1-813 which provides in part that: “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. . . .” OCGA § 7-1-813 is relevant to the issues presented in the case sub judice only indirectly via OCGA § 7-1-817. See OCGA § 7-1-811.

OCGA § 7-1-817 provides that: “Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded; but payment may not be made to the personal representative or heirs of a deceased party unless proof of death is presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under Code Section 7-1-813.” OCGA § 7-1-820 provides in part that: “Payment made pursuant to Code Section . . . , 7-1-817, . . . discharges the financial institution from all claims for amounts so paid, whether or not payment is consistent with the. beneficial ownership of the account as between parties. . . . The protection here given does not extend to payments made after a financial institution has received written notice from any party able to request present payment to the effect that withdrawals in accordance with the terms of the account should not be permitted.” In the case sub judice, the decedent was survived by joint depositors. Additionally, while plaintiff in his individual capacity, prior to acquiring his present status as executor of Glover’s estate and lacking any right to demand payments from the accounts, notified defendant Trust Company Bank that there was a dispute concerning the accounts, this communication did not amount to a showing by a person able to request present payment that the statutory presumption of OCGA § 7-1-813 is inapplicable. Thus, defendant Trust Company Bank is shielded by OCGA § 7-1-820 and is not liable for permitting withdrawals in accordance with the terms of the account. Lastinger v. Johnson, 148 Ga. App. 453, 455 (4) (251 SE2d 369).

Decided January 16, 1991.

Jenkins, Nelson & Welch, William R. Jenkins, Denise M. Welch, for appellant.

Cashin & Morton, Neal J. Quirk, Richard W. Gerakitis, Franklin H. Davidson, Gail T. Joyner, for appellee.

Judgment affirmed.

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


text:
    A90A1698.
    DEPARTMENT OF HUMAN RESOURCES v. HORNE.
    (401 SE2d 556)
   McMurray, Presiding Judge.

Appellee, a permanent status Merit System employee appointed as a teacher at Central State Hospital, was dismissed based on charges of having engaged in sexual activity, including sexual intercourse with a resident of the Developmental Disabilities Division. Appellee appealed the adverse action and a hearing was scheduled and conducted before a hearing officer. The initial decision of the hearing officer found the preponderance of the evidence showed no misconduct by appellee and directed his reinstatement.

The Georgia Department of Human Resources requested a review of the initial decision by the State Personnel Board. The board found that appellee had sexual intercourse with M. W., a 34-year-old female who had resided at Central State Hospital for the preceding 22 years and, that there was sufficient cause for the dismissal of appellee.

Appellee filed his petition for judicial review of the board’s decision in the Superior Court of Baldwin County. The superior court found that “[t]he record contains no reliable, probative and substantial evidence within the meaning of O.C.G.A. Section 45-20-9 that the misconduct charged against the [employee/teacher], to wit: having sexual relations with a patient did occur.” The superior court reversed the decision of the board and directed the reinstatement of appellee to his former employment.

The Georgia Department of Human Resources made application to this Court and was granted permission to file this discretionary appeal from the judgment of the superior court. Held:

Under OCGA § 45-20-9 (m) (4) the superior court may reverse the decision of the board where the board’s decision is “[cjlearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” OCGA § 45-20-9 (m) states in part: “The court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact.” This statutory language has consistently been construed as confining the scope of review by the superior court to the “any evidence” standard. Hall v. Ault, 240 Ga. 585 (242 SE2d 101). See also Georgia State Indemnification Comm. v. Lyons, 256 Ga. 311 (348 SE2d 642).

In addition to evidence of opportunity, the crucial evidence presented by the Georgia Department of Human Resources before the board was the testimony of M. W. that she had engaged in sexual intercourse with appellee. While other evidence raised issues predicated on multiple theories concerning the veracity of the testimony given by M. W., the resolution of those issues was for the board, as finder of fact, and not the superior court. State Bd. of Pardons & Paroles v. Smith, 179 Ga. App. 426 (346 SE2d 578).

The board’s findings of fact are authorized by the evidence. The superior court erred in reversing the board’s decision.

Judgment reversed.

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

Decided January 8, 1991

Rehearing denied January 17, 1991

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Patricia B. Downing, Assistant Attorney General, for appellant.

Waddell, Emerson, George & Buice, B. Carl Buice, for appellee.


text:
    A90A1730.
    LIBERTY NATIONAL INSURANCE COMPANY v. DAVIS.
    (401 SE2d 555)
   Carley, Judge.

Insofar as they are relevant to the resolution of the instant appeal, the undisputed facts are as follows: Appellee-plaintiff first received medical treatment for her fibrocystic breast disease in 1971. In October of 1986, she was again treated for this disease. In March of 1987, a hospital and surgical policy which had been issued to appellee by appellant-defendant became effective. Under the terms of this policy, a “pre-existing condition” was “not covered until two years after the effective date” and a “pre-existing condition” was defined as one “which manifested itself, or for which medical advice was given or treatment recommended by or received from a physician within two years before the effective date.” (Emphasis supplied.) Less than two years after the effective date of the policy, appellee incurred medical expenses in connection with the treatment of her fibrocystic breast disease and she submitted a claim for benefits under the policy. When appellant denied the claim, appellee filed suit. After answering and engaging in discovery, appellant moved for summary judgment. Although the trial court denied appellant’s motion, it certified its order for immediate review. Appellant applied to this court for an interlocutory appeal and the instant appeal results from our grant of that application.

Appellee’s fibrocystic breast disease is not a “pre-existing condition” insofar as it did not manifest itself less than two years before the effective date of the policy. Appellee’s fibrocystic breast disease is, however, a “pre-existing condition” insofar as she did receive medical treatment therefor less than two years before the effective date. A “pre-existing condition” is unambiguously defined under the policy as a condition which manifested itself less than two years before the effective date of the policy or a condition for which medical treatment was received within that period. “It will be observed that the word ‘or’ is a disjunctive particle, and . . . ‘Its . . . natural meaning, where used as a connective, is to mark an alternative and present choice, implying an election to do one of two things. . . . “Or” is never construed to mean “and” when the evident intent. . . would be thereby defeated.’ [Cit.]” Georgia Paper Stock Co. v. State Tax Bd. of Ga., 174 Ga. 816, 819 (164 SE 197) (1932). Accordingly, that appellee’s fibrocystic breast disease was not a “pre-existing condition” under one of the policy’s alternative definitions of that term does not mean that her fibrocystic breast disease is not a “pre-existing condition” under another of the policy’s alternative definitions of that term. “[I]f the provisions of an insurance policy are ambiguous, or if the provisions in it are conflicting, it is to be construed in favor of the insured and against the company. [Cit.] However, . . . ‘[c]ourts are not called upon, because of the rule that contracts of insurance are to be strictly construed against the insurer, and because the contract itself is one of insurance, to call forth doubt, through construction of plain and unambiguous provisions of such a contract.’ [Cit.]” Wells v. Metro. Life Ins. Co., 107 Ga. App. 826, 830 (1) (131 SE2d 634) (1963).

Decided January 7, 1991

Rehearing denied January 17, 1991.

Young, Young & Clyatt, F. Thomas Young, William A. Turner, Jr., for appellant.

Willis H. Blacknall III, for appellee.

Coverage is excluded for a “pre-existing condition” during the two-year period after the effective date of the policy. It is undisputed that appellee seeks to recover benefits for expenses incurred in the treatment of her “pre-existing condition” during that two-year exclusionary period. It follows that the trial court erred in denying appellant’s motion for summary judgment. “Insurance contracts provide coverage which is, and must be, limited by the carefully chosen wording thereof. . . . ‘Courts have no more right by strained construction to make the policy more beneficial by extending the coverage contracted for than they would have to increase the amount of the insurance.’ [Cit.]” Lovett v. American Family Life Ins. Co., 107 Ga. App. 603, 606 (131 SE2d 70) (1963). “[A]n unambiguous policy requires no construction, and its plain terms must be given full effect even though they are beneficial to the insurer and detrimental to the insured. [Cits.]” Woodmen of the World Life Ins. Society v. Etheridge, 223 Ga. 231, 235 (154 SE2d 369) (1967).

Judgment reversed.

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


text:
    A89A1725.
    CITY OF ATLANTA v. J. A. JONES CONSTRUCTION COMPANY et al.
    (402 SE2d 554)
    Decided January 17, 1991.

      Marva Jones Brooks, Joe M. Harris, Jr., Michael L. Smith, Bruce P. Johnson, for appellant.

      Sumner & Hewes, William E. Sumner, Stephen J. Anderson, David A. Webster, Garrett & McManus, Bowman S. Garrett, Jr., Sheryl N. Currie, for appellees.
   Birdsong, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, City of Atlanta v. J. A. Jones Constr. Co., 260 Ga. 658 (398 SE2d 369) (1990), our decision in City of Atlanta v. J. A. Jones Constr. Co., 195 Ga. App. 72 (392 SE2d 564), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed with direction.

Cooper and Andrews, JJ., concur.