author: Ellington, Judge.

text:
    A01A2204.
    HARRISON v. THE STATE.
    (558 SE2d 760)
   Ellington, Judge.

A Troup County grand jury indicted Dewayne Harrison, Rafeal Jermaine Chambers, and Thaxter Lemont Swindle on charges of armed robbery and aggravated assault in connection with a May 31, 1998 shooting. Swindle pled guilty to robbery by force and testified against Chambers and Harrison, who were tried together. A jury convicted Chambers and Harrison of aggravated assault, OCGA § 16-5-21. See Chambers v. State, 244 Ga. App. 138 (534 SE2d 879) (2000). Harrison appeals, challenging the admission of certain evidence and the sufficiency of the evidence. Finding no error, we affirm.

Briefly, the State’s evidence showed that, at a private party, the three men discussed robbing the victim because he was carrying a lot of money, that they left the party with the victim in a borrowed car, and that, during the course of robbing the victim, Harrison shot and wounded him.

1. Harrison contends the trial court erred in admitting his custodial statement. A custodial statement is admissible only if it was made “voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. “To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances.” (Citation and punctuation omitted.) Gober v. State, 264 Ga. 226, 228 (2) (b) (443 SE2d 616) (1994). See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). “The trial court sits as the factfinder in a Jackson-Denno hearing, and its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous.” (Citation omitted.) York v. State, 242 Ga. App. 281, 292 (6) (528 SE2d 823) (2000). A statement may be voluntary even where, as here, the suspect has a limited education. Rachel v. State, 247 Ga. 130, 132-133 (2) (274 SE2d 475) (1981); Gilham v. State, 232 Ga. App. 237, 239-240 (2) (501 SE2d 586) (1998); Newsome v. State, 180 Ga. App. 243, 244 (3) (348 SE2d 759) (1986).

Harrison contends the investigating officers advised him of his rights after interviewing him, rather than before, and failed to inquire into his educational background. We have reviewed the investigators’ testimony at the Jackson-Denno hearing and find no support for Harrison’s assertion that the trial court refused to consider evidence impeaching the officers’ credibility. Under the totality of the circumstances, the trial court’s conclusion that the custodial statement was made freely and voluntarily was not clearly erroneous. Satterwhite v. State, 250 Ga. App. 313, 315-316 (1) (551 SE2d 428) (2001).

2. Harrison contends the trial court erred in admitting a letter attributed to him in that the State did not lay a proper foundation as to the letter’s authenticity. Swindle, the intended recipient of the letter, testified that he recognized Harrison’s handwriting and that he believed Harrison wrote the letter.

Proof of handwriting may be resorted to in the absence of direct evidence of execution. In such case, any witness who shall swear that he knows or would recognize the handwriting shall be competent to testify as to his belief. The source of his knowledge shall be a question for investigation and shall go entirely to the credit and weight of his evidence.

OCGA § 24-7-6. The trial court did not err in admitting the letter. Summerour v. State, 211 Ga. App. 65 (1) (438 SE2d 176) (1993).

3. Harrison contends the trial court erred in allowing the State to put his character in issue by eliciting testimony that he exchanged crack cocaine to borrow the car used in the commission of the crime. At trial, Harrison objected to the testimony on relevance grounds.

Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. The fact that such part of the res gestae incidentally placed [Harrison’s] character in issue does not render it inadmissible. A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.

(Citation and punctuation omitted.) Veal v. State, 242 Ga. App. 873, 875-876 (3) (531 SE2d 422) (2000). Evidence as to whether a defendant possessed drugs at the time a crime was committed is deemed part of the res gestae and is admissible as such even though it may incidentally place the defendant’s character in evidence. Roberts v. State, 221 Ga. App. 196,198 (2) (471 SE2d 27) (1996). “Moreover, it is highly probable that this evidence did not contribute to the verdict in light of the overwhelming evidence of [Harrison’s] guilt.” (Citation and punctuation omitted.) Cox v. State, 242 Ga. App. 334, 339 (9) (528 SE2d 871) (2000) (evidence that defendants had been using marijuana just before assaulting victim). The trial court did not err in denying Harrison’s relevance objection.

4. Harrison contends the trial court erred in admitting hearsay evidence “involving the parking of the car.” Harrison failed to specify exactly what statement he considered to be objectionable hearsay. See OCGA § 24-3-1 (a) (“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.”). As far as we can determine, Harrison is concerned about the following testimony by the owner of the borrowed car: “[Harrison] said they parked [the car] back here in the back.” Because a defendant’s own statements are admissible against him, the trial court did not err in denying Harrison’s hearsay objection. OCGA §§ 24-3-31; 24-3-34; Stanford v. State, 272 Ga. 267, 270 (4) (528 SE2d 246) (2000).

5. Harrison contends the evidence was insufficient to establish venue in Troup County. The victim’s testimony that he was shot in Troup County was sufficient to establish venue. Rogers v. State, 247 Ga. App. 219, 221 (2) (543 SE2d 81) (2000).

6. Harrison contends the evidence was insufficient because the victim failed to identify the shooter. Viewed in the light most favorable to the jury’s verdict, the evidence, including Swindle’s testimony that Harrison shot the victim, was sufficient to authorize the jury’s finding of guilt of aggravated assault beyond a reasonable doubt. Chambers, 244 Ga. App. at 139-140.

Judgment affirmed.

Johnson, R J., concurs. Ruffin, J., concurs in the judgment only.

Decided January 9, 2002.

William L. Jones, for appellant.

Peter J. Skandalakis, District Attorney, Charles P. Boring, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A1748, A01A1749, A01A1750.
    ROLLESTON et al. v. ESTATE OF SIMS et al. (three cases).
    (558 SE2d 411)
   Mikell, Judge.

In three related appeals, Moreton Rolleston, Jr. appeals the judgment of $4,109,018.16 entered against him on May 10, 2000, the trial court’s ruling that he was not indigent and was therefore able to pay the costs associated with his appeal, and an order holding him in contempt. The estate of Rebecca Wight Cherry Sims and its executor, John Randolph Cherry, (referred to collectively as “the Estate”) filed the underlying action against defendants Rolleston and the Moreton Rolleston Living Trust (the “Trust”) seeking to set aside transfers of Rolleston’s property into the Trust as fraudulent. The Estate also sought and received an interlocutory injunction prohibiting any transfer of real or personal property from the Trust without approval of the court during the pendency of the underlying suit. Upon Rolleston’s appeal from the injunction, the Supreme Court affirmed. Rolleston v. Cherry, 266 Ga. XXV (466 SE2d 866) (1996) (judgment affirmed without opinion).

These combined cases are a continuation of litigation between these parties. In Rolleston v. Cherry, 226 Ga. App. 750 (487 SE2d 354) (1997), we affirmed a $5,200,000 judgment entered against Rolleston in 1995 for claims of professional negligence, breach of fiduciary duty, and fraud relating to his legal representation of Rebecca Sims. The record shows that while that trial was proceeding in March 1995, Rolleston ordered the liquidation of an offshore Wachovia Bank account containing approximately $500,000. Before judgment was entered on April 7, 1995, Rolleston wrote checks to himself in the total amount of $60,000, a check to his wife in the amount of $150,000, and checks to his secretary totaling $53,150. Also, between the time the verdict was returned and the entry of judgment, Rolleston recorded deeds in Fulton County and Glynn County transferring all of the real property titled in his name into the Trust. He also transferred all of his personal property. By his own admission, the real property was valued between $12,000,000 and $15,000,000.

In response, the Estate filed the underlying action in this case to set aside the fraudulent conveyances. The court denied Rolleston’s subsequent motions for summary judgment and granted partial summary judgment to the Estate on the issue of Rolleston’s liability. We affirmed the grant of the Estate’s motion for partial summary judgment and the denial of Rolleston’s motions. Rolleston v. Cherry, 237 Ga. App. 733, 735-736 (1) (521 SE2d 1) (1999).

In August 1998, while the fraudulent conveyance action was pending, Rolleston recorded a lease transferring all of his real and personal property from the Trust to the MRJR Limited Partnership for a term of 100 years. The lease violated the interlocutory injunction entered on July 7, 1995, because it transferred an interest in land without the approval of the court. Additionally, the record shows that Rolleston formed the MRJR Limited Partnership on February 24, 1997, and that he was the general partner, and the Trust was the sole limited partner. The trial court held Rolleston in contempt, and we affirmed the order. Rolleston, supra, 237 Ga. App. at 737-738 (5).

The Estate levied on Rolleston’s Sea Island property on April 21, 1999, in an effort to collect the judgment owed; however, the levy was stayed by Rolleston’s filing of a bankruptcy petition in the U. S. Bankruptcy Court for the Northern District of Georgia. The bankruptcy court dismissed Rolleston’s petition with prejudice on September 21,1999, and the U. S. Supreme Court denied Rolleston’s petition for writ of certiorari and subsequent petition for rehearing.

The present fraudulent conveyance action appeared on the trial court’s calendar on April 11, 2000. The Estate had served Rolleston with its portion of the pre-trial order on April 5; however, Rolleston failed to respond. When the case was called for trial, Rolleston served the Estate in open court with a motion for pre-trial order and a motion in limine seeking to limit the evidence produced by the Estate. The court granted the parties a one-day continuance. On April 12, the court deemed Rolleston’s proposed pre-trial order inadequate and refused to bind the Estate to a pre-trial order in which Rolleston and the Trust refused to list their witnesses. Rolleston and the Trust did not object, nor did they request an official ruling on their motion for pre-trial order. The court granted Rolleston’s motion in limine to the extent that it limited the Estate’s right to recover damages or attorney fees to the fraudulent conveyance action at bar.

During the trial, Rolleston and the Trust moved for a mistrial on the basis that their co-counsel, Michael Pannier, was not qualified to cross-examine the Estate’s expert witness on bankruptcy law. The court denied the motion.

At the close of the Estate’s case, Rolleston and the Trust moved for a directed verdict on several grounds. The Estate did not oppose the motion for directed verdict in favor of the Trust and in favor of Rolleston in his capacity as Trustee on the issue of liability for damages, and the court granted the motion only as to those defendants. The court denied Rolleston’s motion for directed verdict as an individual defendant at that time and again after the defense presented its case.

The jury returned a verdict awarding $718,133 in special damages and $140,885 in attorney fees and finding that the Estate was entitled to punitive damages. The trial proceeded to a second phase on punitive damages. After the Estate presented evidence, the jury returned a verdict on April 21, 2000, finding that Rolleston acted with specific intent to commit harm and awarding punitive damages in the amount of $3,250,000.

Case No. A01A1748

1. First, Rolleston argues that the court erred in proceeding with the trial without entering a pre-trial order. We reject this argument.

As a preliminary matter, we recognize that Rolleston has failed to provide a statement of the method by which this enumeration of error was preserved for appellate consideration in violation of Court of Appeals Rule 27 (a) (1). However, we will briefly address the merits of his argument.

The record shows that Rolleston brought a motion for pre-trial order on the day of trial after failing to respond to the Estate’s portion of the proposed consolidated pre-trial order. The court deemed Rolleston’s proposed pre-trial order inadequate and refused to bind the Estate to it, because Rolleston and the Trust refused to list their witnesses. Rolleston did not object, nor did he request an official ruling on the motion for pre-trial order. Thus, he cannot show reversible error by the trial court in the absence of a ruling. See Intl. Assn, of Bridge Iron Workers &c. v. Moore, 149 Ga. App. 431, 433 (4) (254 SE2d 438) (1979).

Furthermore, even if the court had expressly denied his motion, Rolleston would not be successful on appeal. We conclude that the trial court did not abuse its discretion by declining to enter a pre-trial order. Neither OCGA § 9-11-16 nor Uniform Superior Court Rule 7.2 requires the court to sign a proposed pre-trial order. Swanson v. State Farm &c. Ins. Co., 242 Ga. App. 616, 617 (2) (530 SE2d 516) (2000). Rather, only in cases where a pre-trial conference has been held, OCGA § 9-11-16 (b) requires the court to issue an order reciting the action taken at the conference and any agreements reached by the parties. Id. No pre-trial conference was requested or held in this case; therefore, the court was not required to enter an order.

Additionally, even if we considered Rolleston’s request for a pretrial order to be a request for a pre-trial conference, the court did not err because the request was not timely. “[I]t is not error to refuse a pre-trial conference where the motion is untimely.” Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 478 (2) (491 SE2d 909) (1997) (the court did not err in refusing a request for pre-trial conference on the day of trial). Accordingly, this enumeration of error has no merit.

2. Next, Rolleston assigns error to the court’s admission of certain evidence he claims was excluded by his motion in limine. Rolleston has failed to cite authority or argument for this error in violation of Court of Appeals Rule 27 (a) (3). He has also failed to provide this Court with a statement of the method by which he preserved each alleged error for consideration as required by Court of Appeals Rule 27 (a) (1). In fact, he simply lists the numerous exhibits he claims were admitted in error without providing citations to the record documenting a single objection or argument regarding the inadmissibility of the evidence.

Accordingly, this enumeration is deemed abandoned. Court of Appeals Rule 27 (c) (2). “Appellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument.” Sulejman v. Marinello, 217 Ga. App. 319, 320 (1) (457 SE2d 251) (1995).

3. Similarly, in the next three errors enumerated by Rolleston, Errors 3, 4, and 5, he has failed to provide citation of supporting authority or argument. He claims the trial court erred in denying his motion for a mistrial after it admitted the evidence he challenges in Division 2, in denying his motion in limine to exclude evidence of the lease between the Trust and MRJR Limited Partnership, and in denying his motion for directed verdict on the Estate’s claim of special damages for the loss of use of the judgment based on statutory post-judgment interest. Because Rolleston has failed to support these enumerated errors with citation of authority or argument, they are deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2). Sulejman, supra.

4. Next, Rolleston argues that the court erred in denying his motion for directed verdict on the Estate’s claim of special damages for the loss of its use of the judgment, because the amount sought by the Estate was entirely speculative. We reject this argument.

It is well settled that the standard of appellate review of the denial of a motion for directed verdict is the any evidence test. Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 456 (2) (496 SE2d 546) (1998). “The question before this court is not whether the verdict and judgment of the trial court were merely authorized, but is whether a contrary judgment was demanded.” (Citations and punctuation omitted.) Id. See also OCGA § 9-11-50 (a). Based on this standard, we conclude that there was evidence to support the jury’s verdict on the Estate’s special damages claim for loss of use, and that the trial court properly denied the motion for directed verdict and submitted the case to the jury.

The Estate presented evidence of the performance of various investment scenarios from the date the judgment was entered until the date of trial. David Joseph Littlefield, Jr., a stock portfolio manager with fifteen years experience, testified that he calculated the historical returns of five different investment scenarios and that the return on an initial investment of $5,200,000 on May 5, 1995, would have appreciated conservatively in the range of $6,700,000 to $15,000,000. On cross-examination, Littlefield testified regarding the investment scenarios that “[t]here are no projections. Those are all historical.” Additionally, the executor of the Estate, John Randolph Cherry, testified that the time and expense of the litigation necessitated by Rolleston’s refusal to satisfy the existing judgment had damaged the Estate.

In light of the evidence supporting the Estate’s claim for special damages for loss of use, the trial court did not err in denying Rolleston’s motion for directed verdict, and we affirm.

5. Rolleston also assigns error to the court’s denial of his motion for directed verdict on the Estate’s claim of punitive damages. Rolleston has failed to support this error with citation of authority or argument in violation of Court of Appeals Rule 27 (a) (3); however, we will briefly address its merits.

OCGA § 51-12-5.1 (b) provides:

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

We find that the extensive record provides clear and convincing evidence to authorize the jury’s award of punitive damages. See generally Hudgins & Co. v. J & M Tank Lines, 215 Ga. App. 308, 309-310 (450 SE2d 221) (1994). For example, Howard H. Johnston, an attorney practicing in the area of trusts and estates, testified that the Trust accomplished none of the estate planning purposes of a living trust. The evidence shows that Rolleston recorded deeds transferring millions of dollars worth of real property into the Trust after the verdict but before judgment had been entered in order to shield those assets from the Estate. Furthermore, he created the MRJR Limited Partnership and leased all of his real and personal property to that limited partnership in order to prevent the Estate from collecting on the judgment.

Accordingly, there was clear and convincing evidence to support the jury’s award of punitive damages, and the trial court did not err in denying Rolleston’s motion for directed verdict.

6. Next, Rolleston argues that the court erred in not limiting the amount of the punitive damages award because there was no proof of specific intent to cause harm. Again, Rolleston has failed to support the enumerated error with citation of authority; however, we will briefly address its merits.

Under OCGA § 51-12-5.1 (g), punitive damages are limited to a maximum of $250,000 for any tort action, unless the jury finds that “the defendant acted, or failed to act, with the specific intent to cause harm.” (Punctuation omitted.) Alta Anesthesia Assoc. &c. v. Gibbons, 245 Ga. App. 79, 89 (8) (537 SE2d 388) (2000). In McDaniel v. Elliott, 269 Ga. 262, 265 (3) (497 SE2d 786) (1998), the Supreme Court held that a party seeking punitive damages must “request both a charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact in order to avoid the cap on punitive damages.”

In the case sub judice, the court instructed the jury as follows:

If you find that the defendant acted with specific intent to harm the plaintiff, there is no limit to the amount of punitive damages you may award. In other words, the law does not limit you in any way. It’s left up to you as to what is fair and just. However, if you find that the defendant, against whom you are awarding damages, did not act with specific intent to harm the plaintiff, then the punitive damages you may award are limited to a maximum of $250,000. Subject to this limitation, the amount you may award may be as large or as small as you believe necessary to fulfill the purpose of punitive damages.

On the verdict form, the jury responded “yes” to the following statement: “We the jury find that. . . Defendant acted with specific intent to harm Plaintiff.” Contrary to Rolleston’s argument, there was evidence in the record to support the jury’s finding. Accordingly, the trial court did not err in refusing to cap the award of punitive damages. Alta Anesthesia Assoc., supra at 89-90.

7. Rolleston argues that the trial court erred in admitting plaintiff’s Exhibit 137, which contained evidence of attorney fees and expenses. Our review of the record reveals that the exhibit challenged by Rolleston was not admitted into evidence. Accordingly, this enumeration presents nothing for our review.

8. In his enumeration of errors, Rolleston contends in Error 10 that the trial court erred in denying his motion for summary judgment. However, in the argument portion of his appellate brief in support of this error, he states that “[t]he Court erred in failing to grant [his] Motion for Mistrial after the court reversed itself and allowed evidence of conduct subsequent to the first hearing in this case in 1998.” Rolleston has not provided a single citation to legal authority or to the record, nor has he provided any further argument in support of this error. Accordingly, this error is deemed abandoned. Court of Appeals Rule 27 (c) (2), (3); Sulejman, supra.

In summary, the judgment of the trial court appealed in Case No. A01A1748 is hereby affirmed.

Case No. A01A1749

9. In this appeal, Rolleston challenges the trial court’s finding that he was not indigent and that he was therefore able to pay the bills of costs associated with his appeals. The Estate filed a motion to dismiss this appeal. For reasons explained below, we grant the Estate’s motion to dismiss.

Rolleston filed a notice of appeal on May 12, 2000, following the trial on damages, in which he directed the Clerk of Fulton County Superior Court to “omit nothing” from the record. As noted above, Rolleston previously appealed the trial court’s grant of partial summary judgment to the Estate. In that notice, he also directed the clerk to “omit nothing.” Therefore, nearly the entire voluminous record was already on file with this Court when Rolleston filed his most recent notices of appeal.

On January 24, 2001, the clerk served Rolleston with two bills of costs in a total amount of over $4,000. On the final day for payment, Rolleston filed an affidavit of indigence. The Estate filed a traverse affidavit contending that Rolleston’s affidavit was untrue and attaching copies of checks payable to Rolleston in excess of $115,000. In its order following a hearing on Rolleston’s indigence, the court stated that Rolleston admitted that he had received or negotiated the checks attached to the Estate’s traverse affidavit, and that he admitted the remaining allegations contained in the Estate’s affidavit, including his memberships in exclusive private clubs, his employment of a secretary and expenditure of $50,000 for a law office that generated no income, and his residence. The transcript of the hearing on Rolleston’s indigence is not contained in the record. The trial court found that Rolleston was not indigent and required him to pay the bills of costs. In this appeal, he challenges the trial court’s ruling.

It is clear under Georgia law that a trial court’s discretion when reviewing an affidavit of indigence is not appealable. OCGA § 5-6-47 (b) provides:

Any party at interest or his agent or attorney may contest the truth of the affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the trial court under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond, shall be final.

(Emphasis supplied.) See also OCGA § 9-15-2 (a) (2). Further, we have previously held that “a trial court’s findings concerning a party’s indigene [e are] not reviewable in cases where the affidavit of indigene [e] has been traversed by an opposing affidavit.” Quarterman v. Weiss, 212 Ga. App. 563, 564 (5) (442 SE2d 813) (1994). See also Penland v. State, 256 Ga. 641, 642 (352 SE2d 385) (1987); Saylors v. Emory Univ., 187 Ga. App. 460, 461 (1) (370 SE2d 625) (1988); Harris v. State, 170 Ga. App. 726 (318 SE2d 315) (1984).

Accordingly, this appeal presents nothing for our review. The Estate’s motion to dismiss is hereby granted, and Case No. A01A1749 is hereby dismissed.

Case No. A01A1750

10. In this appeal, Rolleston argues that the trial court erred in holding him in contempt for entering into a contract to sell a piece of real property in violation of the interlocutory injunction entered on July 7, 1995, and the consent order entered July 24, 2000.

Court of Appeals Rule 27 (c) (3) (i) requires that each enumerated error be supported by specific reference to the record or transcript and provides that “[i]n the absence of such reference, the Court will not search for or consider such enumeration.” Rolleston has failed to provide citations to the record for a significant portion of the statement of facts contained in his appellate brief, and he did not provide a single reference to the record in his enumerated error. Furthermore, Rolleston has failed to provide the applicable standard of review and has failed to support this enumeration of error with citation of authority or argument, in violation of Court of Appeals Rule 27 (a) (3). “Any enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” Court of Appeals Rule 27 (c) (2). Accordingly, this appeal presents nothing for our review, and the order of the trial court holding Rolleston in contempt is affirmed.

Decided December 4, 2001

Reconsideration denied January 10, 2002

Moreton Rolleston, Jr., for appellants.

Shelby A. Outlaw, for appellees.

Judgments affirmed in Case Nos. A01A1748 and A01A1750. Appeal dismissed in Case No. A01A1749.

Blackburn, C. J, and Pope, P. J, concur.

       Rolleston, an attorney, also represented himself and the Trust.

       The deeds were signed on February 27,1995, approximately one week before the trial began. They were all recorded on or after March 29, 1995.


author: Eldridge, Judge.

text:
    A01A1789.
    KELLOGG COMPANY et al. v. PINKSTON et al.
    (558 SE2d 423)
   Eldridge, Judge.

On December 20, 1999, appellees-plaintiffs Rosemary and Robert Pinkston filed a complaint in the State Court of Fulton County against appellants-defendants the Kellogg Company d/b/a Mrs. Smith’s Frozen Foods, a Michigan corporation, and the Eggo Company d/b/a Mrs. Smith’s Frozen Foods, a Delaware corporation (Kellogg-Eggo), seeking damages for injuries Ms. Pinkston allegedly sustained as a result of her exposure to asbestos dust in the workplace coming from asbestos ceiling tiles and derivatively for Mr. Pinkston’s loss of consortium. On or about the same date, the plaintiffs filed a claim for workers’ compensation benefits upon such grounds. On May 3, 2000, the Pinkstons obtained a default judgment as to liability upon Kellogg-Eggo’s failure to answer their complaint. In September 2000, a magistrate judge sitting as a state court gave final judgment ex parte to the Pinkstons after a bench trial. The state court magistrate awarded the Pinkstons compensatory and punitive damages totaling $4,400,000. This appeal followed the state court magistrate’s denial of Kellogg-Eggo’s motion to set aside default judgment and to open default. Because the state court magistrate erroneously gave final judgment to plaintiffs lacking subject matter jurisdiction, we must vacate and remand with direction that the instant action be dismissed. Held:

1. Kellogg-Eggo claims that the state court magistrate erred in denying its motion to set aside judgment and refusing to dismiss the Pinkstons’ damages complaint for lack of subject matter jurisdiction, the complaint as pleading a cause of action exclusively within the Workers’ Compensation Act, OCGA § 34-9-1 et seq. We agree.

The rights and remedies of an employee against his or her employer for a work-related injury under the Workers’ Compensation Act foreclose all other remedies at common law or otherwise for such injury, lost service, or death. Betts v. MedCross Imaging Center, 246 Ga. App. 873, 874 (1) (542 SE2d 611) (2000). When an employee’s injuries are compensable under the Act, the employee is absolutely barred from pursuing a common law tort action to recover for such injuries, even if they resulted from intentional misconduct on the part of the employer. Southwire Co. v. Benefield, 184 Ga. App. 418, 419 (361 SE2d 525) (1987). And most pertinent under the circumstances of this case,

[t]o the extent [an] appellant seeks redress for current or future physical injury by accident due to occupational disease or otherwise (caused by ingestion of or exposure to asbestos fibers) and arising out of. . . his employment, it is barred by the exclusivity provisions of the Workers’ Compensation Act. Likewise barred are those claims grounded on an intentional tort, which . . . essentially. seek redress based on current or future physical injury arising from the alleged ingestion of or exposure to asbestos [in] the [workplace]. [Cits.]

(Emphasis in original.) Johnson v. Hames Contracting, 208 Ga. App. 664, 667 (4) (a) (431 SE2d 455) (1993).

On its face, the Pinkstons’ unamended complaint for damages pleads causes of action for work-related injury preempted by the Workers’ Compensation Act. Betts v. MedCross Imaging, supra; Southwire Co. v. Benefield, supra. The Pinkstons’ complaint fails to plead any of the exclusivity exceptions to the Act. Neither does the complaint plead facts from which the applicability of any of the exceptions might be inferred. In light of the foregoing, the state court magistrate was under a duty to dismiss the Pinkstons’ complaint for lack of subject matter jurisdiction. See OCGA § 9-11-12 (h) (3) (“Whenever it appears, by [the] suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”); see also Whitlock v. Barrett, 158 Ga. App. 100, 103 (279 SE2d 244) (1981) (“Jurisdiction either exists or does not exist without regard to the merit of the case.”).

In this case, Ms. Pinkston was exposed to asbestos fibers during her employment, which terminated in late 1988. She developed asbestosis, an industrial disease, after she left employment and, assuming that she timely filed her workers’ compensation claim on November 19, 1999, was diagnosed within the preceding year. See OCGA § 34-9-281 (b) (2) (“[A]n employee with asbestosis or mesothelioma related to exposure to asbestos shall have one year from the date of first disablement after diagnosis of such disease to file a claim for disablement.”). Nonetheless, workers’ compensation as the exclusive remedy for work-related injury still bars recovery. Johnson v. Hames Contracting, supra.

Even were there subject matter jurisdiction (and we hold the contrary), the state court magistrate issued final judgment ex parte for the Pinkstons, finding that Kellogg-Eggo engaged in wilful misconduct and intentional torts which “did not arise in and out of the course of [Ms.] Pinkston’s employment and at a time when [she] was not engaged in any work activity.” There is no evidence in the record to this effect inasmuch as the Pinkstons did not have the bench trial on damages taken down. Because the Pinkstons’ unamended complaint for damages was based on injury arising out of Ms. Pinkston’s employment and the state court magistrate found injury unrelated to Ms. Pinkston’s employment (presumably upon evidence to that effect), see Mullins v. Columbia County, 202 Ga. App. 148 (413 SE2d 489) (1991) (presumption of regularity requires that we assume trial court’s findings to be supported by sufficient competent evidence absent evidence to the contrary), it follows that the Pinkstons asserted new causes of action against Kellogg-Eggo at the state court magistrate bench trial on damages. No evidence of record shows that the Pinkstons noticed Kellogg-Eggo as to these additional claims. In the absence of such notice, the state court magistrate lacked subject matter jurisdiction below for the additional reason that a plaintiff seeking to raise new causes of action or new claims is required to serve a defendant in default with written notice before such claims may be adjudicated. See Stroud v. Elias, 247 Ga. 191, 192-193 (275 SE2d 46) (1981); Lambert v. Gilmer, 228 Ga. 774, 775-776 (187 SE2d 855) (1972); Jayson v. Gardocki, 221 Ga. App. 455, 456-457 (1) (471 SE2d 545) (1996); see also OCGA §§ 9-11-5 (a) (“[T]he failure of a party to file pleadings in an action shall be deemed to be a waiver ... of all notices, . . . except service of pleadings asserting new or additional claims for relief, which shall be served as provided by subsection (b) of this Code section.”); 9-11-54 (c) (1) (“A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.”). Inasmuch as the state court magistrate thus granted the Pinkstons final judgment lacking subject matter jurisdiction, we vacate such judgment and remand to the state court magistrate with direction that the Pinkstons’ complaint for damages be dismissed.

Decided December 11, 2001

Reconsideration denied January 10, 2002

Paul, Hastings, Janofsky & Walker, William B. Hill, Jr., Nicole L. Day, for appellants.

Joseph A. Maniscalco, Jr., David A. Anton, Ralph S. Goldberg, for appellees.

2. In light of our disposition of Division 1, we need not address Kellogg-Eggo’s remaining claims of error.

Judgment vacated and remanded with direction.

Andrews, P. J., and Miller, J., concur.

       Ms. Pinkston was awarded $2,600,000 and $1,500,000 as compensatory and punitive damages, respectively. Mr. Pinkston was awarded $300,000 as damages for loss of consortium.

       A judgment is final if “ ‘it disposes of the entire controversy, leaving nothing for the trial court to do in the case.’ ” Rapid Taxi Co. v. Broughton, 244 Ga. App. 427, 428 (1) (535 SE2d 780) (2000).

       Not barred by Southwire Co. is an employee’s tort action “for a nore-compensable injury allegedly resulting from the employer’s or co-employee’s intentional misconduct.” (Emphasis in original.) Potts v. UAP-GA. AG. Chem., 270 Ga. 14, 16 (506 SE2d 101) (1998).

       The Pinkstons’ complaint for damages avers that Kellogg-Eggo fraudulently and intentionally failed to inform Ms. Pinkston that she would be exposed to asbestos during the removal of such in the course of her employment causing her injuries.

       An employee may maintain a cause of action outside the Workers’ Compensation Act in three circumstances: (1) when the injury is a disease not naturally growing out of injuries arising out of and in the course of employment; (2) the injury is caused by the wilful act of a third person directed against such employee for reasons personal to him; or (3) the injury results from wilful misconduct on the part of the employer. See OCGA § 34-9-1 (4); see also Jim Walter Homes v. Roberts, 196 Ga. App. 618 (396 SE2d 787) (1990) (former employee entitled to sue employer for conspiring with insurance company to deny the employee proper medical treatment).

       The record on appeal is silent as to the date Ms. Pinkston was diagnosed as suffering from asbestosis, her workers’ compensation claim of record showing only that the date of her first disablement was “to be provided.”


text:
    A01A1881.
    NEISLER v. THE STATE.
    (556 SE2d 258)
   Mikell, Judge.

David Tony Neisler appeals the denial of his motion for an out-of-time appeal and petition for mandamus. Neisler pleaded guilty to three counts of vehicular homicide and one count of serious injury by vehicle on April 15, 1992. Following a pre-sentence investigation, Neisler came before the trial court for sentencing on June 8, 1992. The trial court announced that it would not accept the negotiated sentence of 15 years to serve and provided Neisler and his attorney with the opportunity to withdraw the guilty plea. After conferring with his counsel, Neisler elected not to withdraw his plea. The court sentenced Neisler to a total of 40 years to serve. Neisler filed a motion to modify his sentence on October 19, 1992, and after a hearing, the court denied the motion on January 25, 1993. Nearly eight years after he was sentenced, Neisler, acting pro se, filed a motion for an out-of-time appeal on May 24, 2000, and a petition for mandamus on October 15, 2000, in which he demanded that a hearing be scheduled on his motion. The court denied both the motion for an out-of-time appeal and the petition for mandamus in an order entered March 20, 2001. This appeal followed. We affirm the judgment of the trial court.

1. The trial court properly denied Neisler’s motion for an out-of-time appeal because Neisler did not meet his burden of establishing that his failure to file a timely appeal was caused by ineffective assistance of counsel and that the issues he would raise on appeal could be resolved by facts appearing in the record. Wheeler v. State, 269 Ga. 547, 548 (499 SE2d 629) (1998); Lane v. State, 263 Ga. 517, 518 (2) (436 SE2d 9) (1993). “The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion. [Cit.] We find no abuse of discretion in this case.” Dover v. State, 237 Ga. App. 797, 798 (516 SE2d 839) (1999).

First, the court did not err in denying the motion based on Neisler’s claim of ineffective assistance of counsel. It is well settled that “an out-of-time appeal is appropriate where ‘due to the ineffective assistance of counsel, no appeal has been taken.’ ” Lane, supra, citing Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991); Williams v. State, 251 Ga. 83 (303 SE2d 111) (1983). In his motion for an out-of-time appeal and in the present appeal of the denial of that motion, Neisler claims that his trial counsel was ineffective because he did not acquaint himself with the law and facts of the case. Significantly, Neisler has never claimed that his counsel’s negligence caused the substantial delay in filing a notice of appeal. In fact, Neisler offers no explanation for the delay. Accordingly, because Neisler has not alleged that his right to file an appeal was frustrated by the ineffectiveness of his counsel, the court did not err in denying his motion for an out-of-time appeal on this ground. See Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996); Lane, supra. Compare Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001).

Additionally, we note that the transcript of the guilty plea indicates that contrary to Neisler’s argument, defense counsel was familiar with the evidence and the applicable law. Specifically, the prosecutor represented to the court that he had spoken with defense counsel extensively about the case and that defense counsel was familiar with the evidence. Neisler’s counsel told the court that he had conducted discovery, reviewed the evidence, visited the scene of the accident, interviewed a number of witnesses, and discussed the evidence with Neisler and his mother. When the court asked Neisler if he was “satisfied that [counsel had] considered all of the surrounding facts and possible defenses” and if he was satisfied with his attorney’s services, he responded affirmatively.

The trial court’s denial of the motion for an out-of-time appeal was also proper because Neisler failed to demonstrate that the issues he would raise on appeal could) be resolved by facts appearing in the record. In Smith v. State, supra, the Supreme Court held that a motion for an out-of-time appeal should be denied “unless [the defendant] had a right to file a timely direct appeal which was frustrated by the ineffective assistance of his counsel.” (Emphasis in original.) In the case sub judice, the trial court properly found that Neisler failed to demonstrate that he possessed such a right to file a direct appeal. “A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.” (Citation and punctuation omitted.) Id.

Other than his argument regarding ineffective assistance of counsel, Neisler raised the following grounds for appeal in his motion: that the state lacked evidence to support the charges against him; that there was insufficient evidence to support the grand jury’s indictment; and that the trial judge was biased against him. As the movant, Neisler had the burden of demonstrating a “good and sufficient” reason for his entitlement to an out-of-time appeal. Wheeler, supra; Dover, supra. However, Neisler failed to satisfy his burden by showing that the questions he sought to raise on appeal could be resolved by looking to the record. First, the record does not contain evidence to resolve the issues Neisler raises regarding the sufficiency of the evidence against him. Additionally, Neisler has not demonstrated evidence in the record that would indicate bias on the part of the trial judge. Accordingly, the trial court did not err in denying Neisler’s motion for an out-of-time appeal. See Smith, supra.

2. We also reject Neisler’s argument that the trial court erred in denying his petition for mandamus. Neisler sought to compel the clerk of court to schedule a hearing on his motion for an out-of-time appeal. A writ of mandamus may issue to compel the performance of an official duty if a petitioner has a clear legal right to have the particular act performed. McClure v. Hightower, 237 Ga. 157, 158 (227 SE2d 47) (1976); OCGA § 9-6-20. Because Neisler did not have a clear legal right to a hearing on his motion for an out-of-time appeal, he was not entitled to a writ of mandamus. Baker v. State, 273 Ga. 842, 843 (2) (545 SE2d 879) (2001) (no hearing necessary on motion for out-of-time appeal when record of guilty plea shows appellant waived his right to appeal). Accordingly, the court did not err in denying Neisler’s petition.

Decided November 9, 2001

Reconsideration denied January 10, 2002

David T. Neisler, pro se.

Philip C. Smith, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

3. Neisler has enumerated additional errors regarding the validity of his guilty plea, alleged defects in the indictment, the victim impact testimony allowed at the sentencing hearing, whether the trial court improperly considered improper factors in rendering his sentence, and whether the trial court prematurely directed that Neisler be placed in the state prison system. Because Neisler failed to file a timely appeal of his conviction and sentence, and because the trial court denied Neisler’s motion for an out-of-time appeal, these enumerated errors are not properly before us, and we lack jurisdiction to consider their merits. Davis v. State, 233 Ga. App. 825, 826-827 (505 SE2d 801) (1998); OCGA § 5-6-38 (a).

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       Additionally, the Sentence Review Panel of Georgia affirmed Neisler’s sentence.

       Although the record does not contain a copy of the petition for mandamus, it is expressly denied in the trial court’s order.


author: Barnes, Judge.

text:
    A01A2105.
    LARSEN v. THE STATE.
    (558 SE2d 418)
   Barnes, Judge.

Marie Jean Larsen appeals her conviction of driving under the influence following a bench trial, arguing that the court erred by “ignoring the overwhelming evidence” that she did not intend to drive. She also contends on appeal that the trial court “was biased and failed to hear [her] case impartially.”

At her bench trial, Larsen stipulated that she was a less safe driver and that her blood alcohol level was 0.184 to 0.189. She defended the charges on the ground that she did not intend to drive, but was sleepwalking, and therefore did not have the guilty mind necessary for conviction.

On appeal from a bench trial, we view the evidence with all inferences in favor of the factfinder’s conclusion, giving due regard to the trial court’s opportunity to judge witness credibility. Poole v. State, 249 Ga. App. 409, 410 (1) (548 SE2d 113) (2001). The issue before us is whether the evidence was sufficient at trial to support a conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in the light most favorable to the judgment, the evidence at trial established that Larsen had a medical condition known as fibromyalgia and that one of her symptoms was an inability to sleep. To treat this disorder, every night at bedtime she took an antidepressant, a muscle relaxant, an antianxiety medication, and a fourth drug often used to treat Parkinson’s disease. She testified that the night she was arrested, she had taken her prescribed medication at bedtime after drinking three glasses of wine earlier that evening and remembered nothing else until she awoke handcuffed in the back of a police car. She said that she did not remember drinking any more wine or getting in the car, that she would not have purposefully gone outside barefoot in short pajamas and a sweater, and that she had been a lifelong, vocal opponent to drinking and driving. Her daughter confirmed that her mother was adamantly opposed to drinking and driving, but further testified that on two previous occasions, she found her mother so intoxicated from drinking and taking her medication that she had passed out. The daughter also testified that she had argued with her mother about drinking and taking these drugs after the last time she passed out.

A doctor of pharmacology who specializes in sleep disorders and the drugs used to treat them testified that sleepwalking is a recognized side effect of the medications Larsen had been taking, particularly when taken in combination with each other and with alcohol. When a person sleepwalks, she can appear to be functioning normally, but would not be consciously aware of her actions and would remember nothing that occurred during the incident until she awoke. The expert also testified that the manufacturer’s insert that should have been supplied with at least one of Larsen’s medications would have warned against taking it and drinking alcohol, although the bottles themselves had no warning label.

The trial court, sitting as the trier of fact, said that the incidents of intoxication that Larsen’s daughter described put Larsen on notice that she had a problem with alcohol and that “this was not a three-wine evening for you that got you to a point 184.” After watching a videotape of the stop and arrest, the court was not convinced Larsen was in a sleep state, but that she intended to go for a drive, and thus found her guilty of driving under the influence.

1. Larsen argues on appeal that overwhelming evidence showed she had no intent to drive. “DUI is a crime of general, not specific, intent.” (Citation omitted; emphasis in original.) Prine v. State, 237 Ga. App. 679, 680 (2) (a) (515 SE2d 425) (1999). The State does not have to prove that the defendant intended to drive under the influence, only that the defendant was in an intoxicated condition and that she intended to drive. Id.

Further, “OCGA § 40-6-391 (b) specifically provides: ‘The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section.’ ” Kimberly v. State, 180 Ga. App. 521 (1) (349 SE2d 489) (1986). Finally, “[o]nly involuntary intoxication sufficient to remove the mental capacity to distinguish between right and wrong in relation to the act may excuse a criminal act. Voluntary intoxication is not an excuse for any criminal act. OCGA § 16-3-4.” Bailey v. State, 198 Ga. App. 632, 633 (2) (402 SE2d 363) (1991).

We recently reiterated that voluntary intoxication is not an excuse for a criminal act in a case in which the defendant alleged she had no intent to bite a police officer while she was high on crack cocaine. Henderson v. State, 252 Ga. App. 295 (556 SE2d 204) (2001).

In this case, the defendant testified that she had no intent to drive and that she remembered nothing from the time that she took her bedtime medication and the time she “came to” handcuffed in the back of a police car. However, the trier of fact, after watching a videotape of the defendant’s arrest, did not find her testimony about being in a sleep state credible. He further pointed out that the defendant was on notice from her own daughter that she had a problem with alcohol, but that she chose to drink an excessive amount of alcohol the evening of her arrest. Credibility findings are exclusively for the trier of fact. Gilmore v. State, 242 Ga. App. 470, 471 (1) (530 SE2d 221) (2000); Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Larsen guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, supra, 443 U. S. at 307.

2. Larsen also contends that the trial judge “was biased and failed to hear appellant’s case impartially,” based on selected remarks the judge made while explaining the reasoning behind his verdict. “The alleged bias of the judge [which would warrant a recusal] must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment.” (Citation and punctuation omitted.) Birt v. State, 256 Ga. 483, 486 (4) (350 SE2d 241) (1986). In this case, the trial judge did what factfinders do in every case and applied his own life experiences and knowledge to the evidence at hand. Further, some of the statements that Larsen quotes in support of her argument that the judge was biased addressed the reasoning behind his credibility findings, which again are the factfinder’s province. Finally, the sentencing transcript reveals that the judge did not “ignore” the defense expert’s testimony or the testimony of Larsen and her daughter; rather, he disbelieved them.

Decided December 6, 2001

Reconsideration denied January 10, 2002

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Barry E. Morgan, Solicitor-General, Thomas E. Griner, Assistant Solicitor-General, for appellee.

“ ‘ [M] ere dissatisfaction with the court’s rulings’ is not a legally sufficient ground for recusal,” Butler v. Biven Software, 238 Ga. App. 525, 526 (1) (522 SE2d 1) (1999), or for a post-conviction claim of bias and partiality.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


text:
    A01A2171.
    THOMAS v. ATLANTA CASUALTY COMPANY.
    (558 SE2d 432)
   Eldridge, Judge.

Atlanta Casualty Company brought a declaratory judgment action against its insured, Dimple B. Thomas, for not giving it notice of service of a renewal action in tort against her brought by Laura A. Maestas, which tort action resulted in a default judgment in excess of the minimum policy limits. Atlanta Casualty contended that it gave a reservation of rights notice to Thomas; however, there is no copy of any such notice in the record. Atlanta Casualty’s declaratory judgment action stated “that it is uncertain as to whether that policy affords coverage for the judgment entered against Thomas in the Renewal Action.” Thomas counterclaimed against Atlanta Casualty for bad faith in failing to settle the case for policy limits, which exposed her to a judgment in excess of the policy limits. Atlanta Casualty moved for summary judgment as to its declaratory judgment action and on Thomas’ counterclaim which the trial court granted. On September 27, 2000, Thomas filed a motion to dismiss the declaratory judgment action based upon Morgan v. Guaranty Nat. Cos., 268 Ga. 343 (489 SE2d 803) (1997). After several continuances, the trial court set the motions for hearing at 9:30 a.m. on January 3, 2001. At 8:30 a.m., prior to the hearing at 9:30 a.m. on January 3, 2001, Atlanta Casualty dismissed its declaratory action with prejudice and served notice to Thomas by depositing a copy in the mail on January 3, 2001. The trial court went ahead and heard Atlanta Casualty’s motion for summary judgment on all issues, ignoring in its order the voluntary dismissal, if it had notice. On January 22, 2001, the order granting the motion was filed after being prepared by the plaintiff, which indicated that the trial court had ruled in open court for the plaintiff and had directed the order’s preparation by the prevailing party in open court on January 3, 2001, at the conclusion of the hearing and prior to the defendant’s receipt of the dismissal in the mail as indicated by the certificate of service.

For the voluntary dismissal to be effective, the opposite party must be served with it or have actual notice of the dismissal; until such notice, the dismissal is dormant. Jones v. Jones, 230 Ga. 738, 739-740 (2) (199 SE2d 239) (1973). When plaintiff’s counsel announces to the trial court the intent to voluntarily dismiss, signed a voluntary dismissal that day, and served upon the defense by mail, the voluntary dismissal does not occur until it is filed with the clerk and received by defense counsel. Id.; Carter v. Digby, 244 Ga. App. 217 (535 SE2d 273) (2000). The oral announcement of a ruling on summary judgment in open court constitutes a verdict, which prevents a voluntary dismissal taking effect. OCGA § 9-11-41 (a); Guillebeau v. Yeargin, 254 Ga. 490, 491-492 (1) (330 SE2d 585) (1985). In this case, if the dismissal had been effective, then the trial court lacked subject matter jurisdiction to grant summary judgment on the declaratory judgment. Lakes v. Marriott Corp., 264 Ga. 475, 478 (448 SE2d 203) (1994); Lotman v. Adamson Contracting, 219 Ga. App. 898 (467 SE2d 224) (1996); Smith v. Mem. Med. Center, 208 Ga. App. 26, 28 (1) (430 SE2d 57) (1993).

While a plaintiff is entitled to voluntarily dismiss an action without prejudice despite the inconvenience and irritation to the defendant, this Court. . . has held that a plaintiff may not voluntarily dismiss his complaint after the defendant has filed defensive pleadings seeking affirmative or other relief.

(Citations and punctuation omitted.) Avnet, Inc. v. Wyle Laboratories, 265 Ga. 716, 717-718 (1) (461 SE2d 865) (1995); accord Brown v. Liberty County, 247 Ga. App. 562, 568 (544 SE2d 738) (2001).

There was no uncertainty or insecurity with regard to future conduct for a declaratory judgment, and there existed material issues of fact as to the counterclaim; thus, we reverse.

1. The facts of this case are almost on all fours with Morgan v. Guaranty Nat. Cos., supra at 344, which held that a declaratory judgment action by the insurer after judgment had been taken against the insured whom it failed to timely defend did not present a case for declaratory judgment, because there was no uncertainty and insecurity as to fiiture conduct between the parties. OCGA § 9-4-1.

Therefore, the threshold issue is whether there exists subject matter jurisdiction for a declaratory judgment action where all the rights of the parties had become fixed prior to suit, and Atlanta Casualty is merely asserting its defenses to a breach of contract action by the insured. Morgan v. Guaranty Nat. Cos., supra at 345-346; Cotton States Mut. Ins. Co. v. Stallings, 235 Ga. App. 212, 214 (508 SE2d 688) (1998); Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405, 406 (416 SE2d 875) (1992).

In this case, all rights had accrued and judgment had been entered against the insured after the insurer engaged in her untimely defense after notice by a third party. Either Thomas had been served in the underlying tort action and failed to notify Atlanta Casualty, although there is some evidence that the third party gave such notice prior to taking a default judgment, or there was a factual issue. Atlanta Casualty either had prior notice of the renewed suit prior to judgment given by the third party and either negligently failed to defend or to settle within policy limits after the insured’s demand or with conscious indifference it failed to timely defend by seeking to open a default, which may constitute bad faith, or it did not act in bad faith. Such issues of fact, which had already occurred, created no uncertainty as to what action Atlanta Casualty should take, because all rights had accrued among the parties so that it needed no guidance as to uncertainty from the trial court. Therefore, it could not use a declaratory judgment action to litigate its coverage defenses after the facts had taken place fixing everyone’s rights. Further, there is no evidence in the record that Atlanta Casualty proceeded under any reservation of rights with Thomas.

A declaratory judgment action will not lie where the rights between the parties have already accrued, because there is no uncertainty as to the rights of the parties and risk as to taking future action. See Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 671-672 (1) (507 SE2d 525) (1998); Hatcher v. Ga. Farm &c. Ins. Co., 112 Ga. App. 711, 716-717 (3) (146 SE2d 535) (1965). An insurer cannot create a controversy for declaratory judgment action by filing a suit to determine rights that have already accrued from the prior action of the parties. Miller v. Southern Heritage Ins. Co., 215 Ga. App. 173, 174-175 (1) (450 SE2d 432) (1994), overruled in part on other grounds, Hurst v. Grange Mut. Cas. Co., 266 Ga. 712 (470 SE2d 659) (1996). Declaratory judgment cannot confirm actions already taken by the insurer. Norfolk &c. Ins. Co. v. Jones, 124 Ga. App. 761, 763-764 (2) (186 SE2d 119) (1971). Since the judgment of default has already been entered, the setting aside of the judgment denied, and defense of the insured already undertaken, then there exists no justiciable issue as to the duty to defend. Atlantic Wood Indus. v. Argonaut Ins. Co., 190 Ga. App. 814 (380 SE2d 504) (1989) (determine duty to defend); State Farm &c. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332, 334-335 (208 SE2d 170) (1974) (determination of duty to defend prior to judgment on tort action); Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 515-516 (1) (160 SE2d 844) (1968) (determine obligation to defend).

The General Assembly has vested in the superior court subject matter jurisdiction to decide actual cases of uncertainty as to future conduct under the Declaratory Judgment Act under limited circumstances.

[S]ubject matter of which the court must have jurisdiction in order to enter a valid judgment is defined by the courts of this State as: “the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power.”

Williams v. Kaylor, 218 Ga. 576, 580-581 (129 SE2d 791) (1963). When a purported declaratory judgment action does not meet the criteria for a declaratory judgment, the trial court must dismiss the action without prejudice for lack of subject matter jurisdiction or the appellate court will dismiss the action. Id. at 581; Morgan v. Guaranty Nat. Cos., supra at 344; Empire Fire &c. Ins. Co. v. Metro Courier Corp., supra at 673-674 (2).

2. In determining Thomas’ compulsory counterclaim, this Court must also determine the issues raised in the declaratory judgment action because such issues are defenses to an action for bad faith. Therefore, Atlanta Casualty has maneuvered the trial court and this Court into deciding issues that should not have arisen absent suit by Thomas against Atlanta Casualty for bad faith, but are raised in this suit as a compulsory counterclaim, which counterclaim arose from the conduct of the insurer regarding an untimely defense after notice from a third party of the renewal suit. OCGA § 9-11-13 (a); contra Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 338 (6) (291 SE2d 410) (1982) (tort case against insured did not arise out of the same transaction or occurrence to constitute a compulsory counterclaim to the insurer’s declaratory judgment action to determine coverage). To avoid such procedural gamesmanship of who gets to the courthouse first, the trial court should have dismissed the declaratory judgment action on its own motion for lack of subject matter jurisdiction.

3. The trial court erred in granting summary judgment on disputed issues of material fact raised by Thomas’ evidence.

(a) On March 14,1996, counsel for Maestas sent a certified letter to Atlanta Casualty with a copy of the renewed complaint, giving notice of the renewed action against Thomas; such notice was provided 392 days prior to any default judgment being taken. Thus, Atlanta Casualty’s untimely defense of Thomas becomes an issue of either negligence, intentional misconduct, or no liability. Thomas in her answer to the declaratory judgment action pled that Atlanta Casualty had received notice of the renewal suit from Maestas, because Thomas had no knowledge of service made upon her. Further to the contrary, on January 7, 1999, John Marshall’s affidavit alleges that Atlanta Casualty received the first notice of the renewal action from Maestas’ counsel, although on March 14, 1996, Maestas’ counsel had earlier provided notice and a copy of the suit, which creates a material issue of fact for jury determination. Such material issues of fact as to notice are for the determination not by the trial court but by the jury. OCGA § 33-7-15 (c); Weekes v. Nationwide Gen. Ins. Co., 232 Ga. App. 144, 148-149 (500 SE2d 620) (1998) (notice by a third party to the insurer prior to default judgment); Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129, 132 (401 SE2d 36) (1990) (no notice to insurer until default judgment entered, but plaintiff’s counsel agreed to set aside the judgment, giving rise to the inference that there was no prejudice to the insurer and creating a jury question).

(b) Under OCGA § 33-7-15 (c), where the insurer has received notice of the pending action not from the insured but from a third person, the insurer has not made out the defense of failure of notice of a pending action. Ga. Farm &c. Ins. Co. v. Martin, 209 Ga. App. 237, 238 (1) (433 SE2d 315) (1993), rev’d on other grounds, 264 Ga. 347 (444 SE2d 739) (1994); see also Mahone v. State Farm &c. Ins. Co., 188 Ga. App. 664, 667 (2) (373 SE2d 809) (1988).

Where under OCGA § 33-7-15 (c), a third party gave notice to the insurer more than 30 days prior to judgment, as in this case, summary judgment as to notice should have been denied, leaving the issue of third-party notice up to a jury. Ga. Farm &c. Ins. Co. v. Martin, supra, 209 Ga. App. at 238 (notice by third party more than 30 days prior to judgment); Chadbrooke Ins. Co. v. Fowler, 206 Ga. App. 778, 779-780 (426 SE2d 578) (1992) (plaintiff failed to give notice more than 30 days prior to taking a default judgment); Champion v. Southern Gen. Ins. Co., supra at 132 (no notice prior to default judgment but plaintiff offered to set aside the default judgment, creating a jury question as to prejudice).

(c) Atlanta Casualty contended that Thomas breached her contractual duty to provide notice under the policy. Thomas denied service in her affidavit as well as the affidavit of family members, which created a jury question as to the return of service by the marshal. However, service of notice by a third party raises a jury question as to notice and as to prejudice to Atlanta Casualty where default judgment had not been taken and a motion to open default was possible. OCGA § 33-7-15; Ga. Farm &c. Ins. Co. v. Martin, supra, 209 Ga. App. at 238; Chadbrooke Ins. Co. v. Fowler, supra at 780. Counsel for the injured party can give the requisite notice of an accident under the policy to avoid a notice defense under the policy, because “it makes no difference who gives notice, so long as a reasonable and timely notice is given the company and it has actual knowledge of the pendency of a claim or suit.” (Citation and punctuation omitted.) State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 467 (3) (258 SE2d 146) (1979); Stonewall Ins. Co. v. Farone, 129 Ga. App. 471, 474 (199 SE2d 852) (1973). Thus, notice of the pending suit can also be given by a third party to comply with the policy condition.

(d) On February 18, 1999, Thomas’ personal counsel made a demand upon Atlanta Casualty to settle the case within policy limits, because Atlanta Casualty had allowed the case to go to default judgment without defending even though it was on notice of the renewed suit since March 14, 1996. Instead of settling within the policy limits, Atlanta Casualty unsuccessfully sought to set aside the default judgment.

Although policy limits were the minimum coverage at $15,000, Atlanta Casualty in failing to timely defend and to pay policy limits after the default judgment was entered may be liable for bad faith and the full amount of the judgment where such consequential damages can be traced directly to the failure to timely defend. The issue of consequential damages, i.e., judgment in excess of the policy limits, and causation were matters for jury determination. Leader Nat. Ins. Co. v. Kemp & Son, Inc., 259 Ga. 329, 330 (380 SE2d 458) (1989); Atlanta Cas. Ins. Co. v. Gardenhire, 248 Ga. App. 42, 44 (2) (545 SE2d 182) (2001). “[W]here an insurance company fails to offer a defense, it may be liable to its insured beyond the policy limits to the full amount of the judgment. . . . Nevertheless, we agree with Atlanta Casualty that a jury question exists as to the extent of its liability.” (Citations omitted.) Atlanta Cas. Ins. Co. v. Gardenhire, supra at 44-45 (2).

In this case, Atlanta Casualty did not attempt to open the default prior to a default judgment being taken; it sought to set aside the default judgment after it was entered. Where the insured is in default, has a meritorious defense, and has a legal excuse for the default, and the insurer has notice of both the pending action and the default of the insured prior to plaintiff taking a default judgment, a jury question arises as to whether the insurer’s failure to seek to open default constitutes bad faith, giving rise to liability. See generally Ga. Farm &c. Ins. Co. v. Martin, supra, 264 Ga. at 350-351.

(e) The failure either to settle within policy limits or to make an offer of settlement creates an issue of bad faith of the insurer, because the issue arises whether the insurer places its financial interest superior to the interests of its insured who is placed at great risk for an excess judgment. “We think it clear that an even greater duty rests upon the [insurer] after a verdict in excess of the policy limitation has been returned and an offer of settlement within the policy is made.” (Citations and punctuation omitted.) U. S. Fidelity &c. Co. v. Evans, 116 Ga. App. 93, 95-96 (2) (156 SE2d 809) (1967), aff’d, 223 Ga. 789 (158 SE2d 243) (1967). Where there was a default judgment already in excess of the policy limits, the insurer has the duty to act with the utmost good faith on behalf of the insured to dispose of the judgment against her without exposing her to the risk of excess liability inherent in the default judgment. “As a professional in the defense of suits, [the insurer] must use a degree of skill commensurate with such professional standards. As the champion of the insured, [the insurer] must consider as paramount [her] interests, rather than its own, and may not gamble with [her] funds.” (Citations and punctuation omitted.) U. S. Fidelity &c. Co. v. Evans, supra, 116 Ga. App. at 95 (2). Where a default judgment is unlikely to be set aside on general grounds, for the insurer to refuse to settle but to seek to set the judgment aside and to appeal the denial raises an issue of bad faith. U. S. Fidelity &c. Co. v. Evans, supra, 223 Ga. at 789. When the insurer considers its own self-interest regarding whether or not to settle a case within policy limits, the insurer must give at least equal consideration to the interests of its insured under the facts and circumstances of the case. U. S. Fidelity &c. Co. v. Evans, supra, 116 Ga. App. at 95; see also Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268-269 (1) (416 SE2d 274) (1992).

It is no longer open to question in this State that the claim of an insured under an automobile liability policy for damages on account of the bad faith tortious refusal of the insurer to settle a liability claim against [her] within the policy limits resulting in damage to [her] in the form of a judgment in excess of the policy limits being returned against [her] is a legitimate charge against the insurer upon which recovery may be had by the insured.

(Citations omitted.) Shaw v. Caldwell, 229 Ga. 87, 91 (1) (189 SE2d 684) (1972); see also Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759, 761 (1) (409 SE2d 852) (1991), aff’d in part and rev’d in part, supra, 262 Ga. 267. “In deciding whether to accept an offer to settle a claim within policy limits, the insurer must accord the interest of its insured the same faithful consideration it gives its own interest. It is for the jury to decide whether the insurer has or has not so acted.” (Citations and punctuation omitted.) Southern Gen. Ins. Co. v. Holt, supra, 200 Ga. App. at 761 (2).

Thus, finding Thomas with a default judgment against her, Atlanta Casualty should have considered settlement to protect the insured instead of seeking a policy defense to void coverage which would expose the insured to liability on an excess default judgment.

Decided December 19, 2001

Reconsideration denied January 10, 2002

Robert H. Benfield, Jr., Slappey & Sadd, James N. Sadd, for appellant.

Mabry & McClelland, DeeAnn B. Waller, for appellee.

(f) Where an insurer violates its fiduciary duty to its insured and puts its interests superior to its insured, such conduct may be found to be tortious, either negligent or bad faith. Southern Gen. Ins. Co. v. Holt, supra, 262 Ga. at 268-269 (1); McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (310 SE2d 513) (1984). Ignoring the notice of the renewal action prior to the default judgment being taken may constitute at a minimum negligence or at worst bad faith. “The jury generally must decide whether the insurer, in view of the existing circumstances, has accorded the insured ‘the same faithful consideration it gives its own interest.’ [Cits.]” Southern Gen. Ins. Co. v. Holt, supra, 262 Ga. at 268-269 (1).

Where there has been such entire want of care amounting to a conscious indifference to the consequences, this may constitute tortious conduct making punitive damages authorized in any action for negligence or intentional tort of bad faith; this creates a jury question as to whether clear and convincing evidence exists as to such conduct by Atlanta Casualty. OCGA § 51-12-5.1; Brown v. StarMed Staffing, 227 Ga. App. 749, 755 (4) (490 SE2d 503) (1997); see also Southern Gen. Ins. Co. v. Holt, supra, 200 Ga. App. at 768-770 (6), rev’d in part on other grounds. However, for the award of punitive damages to Thomas, she must recover some compensatory damages caused by either the negligence or bad faith of Atlanta Casualty. Southern Gen. Ins. Co. v. Holt, supra, 262 Ga. at 270 (2). However, in this case, the alleged tortious conduct of Atlanta Casualty may be found to have resulted in a judgment against Thomas in excess of her policy limits, which constitutes pecuniary damages necessary to support punitive damages. Id.

Judgment reversed.

Miller, J., concurs. Andrews, P. J, concurs in judgment only.


author: Johnson, Presiding Judge.

text:
    A01A2192.
    JOHNS v. THE STATE.
    (558 SE2d 426)
   Johnson, Presiding Judge.

A jury found Howard Johns III guilty of two counts of child molestation, one count of aggravated child molestation, and one count of cruelty to children. Because each of Johns’ enumerations of error lacks merit, we affirm his convictions.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Johns, the eight-year-old victim’s uncle, tried to put his penis in the victim’s vagina, but was unsuccessful. He then put his penis in her mouth and ejaculated in it. On a later date, Johns “licked [the victim’s] front private” and tried to put his finger in her vagina. Subsequently, the victim told her grandmother about the sexual abuse, and the grandmother reported it to the police. According to the victim, she did not report the abuse earlier because Johns told her he would “hang me up and shoot me in my head.”

1. Johns contends the trial court erred in admitting his second degree rape conviction as similar transaction evidence. We disagree.

The record shows that the state offered evidence of Johns’ conviction in Alabama of rape in the second degree, the equivalent of statutory rape in Georgia, to show his bent of mind and lustful disposition. The investigator of the prior crime identified Johns as the individual who engaged in sexual intercourse with a 13-year-old female and pled guilty to rape in the second degree. The state argued that there was sufficient similarity between the prior crime and the offenses charged because sexual abuse of young children, regardless of the type of acts perpetrated against them, is sufficiently similar to make the evidence admissible. The trial court agreed and permitted the state to introduce the evidence through an officer’s testimony and a certified copy of Johns’ guilty plea.

Johns argues that the admitted similar transaction evidence is too prejudicial to justify its admission. However, the state offered the evidence for the legitimate purpose of demonstrating that Johns engaged in sexual relations with female children. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim as to the acts charged.

Johns next contends that the Alabama case is different from the present case because the victim was older, was a nonrelative, and consented to sexual relations with Johns. However, this argument is without merit. It is well established that “[s]imilar transactions need not be identical to be admitted, and in cases involving sexual offenses, that rule is to be liberally construed. Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible.” We find no such abuse here.

2. Although Johns contends the trial court erred by denying his motion for mistrial, we cannot consider this issue on appeal. Johns moved for a mistrial after the state presented evidence that Johns sexually molested the victim in Alabama. However, since Johns failed to renew his motion for mistrial after the trial court gave the jury curative instructions and failed to request additional limiting or curative instructions, he failed to preserve this issue for appellate review.

Even assuming Johns did properly preserve his motion for mistrial, this argument still lacks merit. The granting or refusing of a motion for mistrial is within the discretion of the trial judge, and we will not disturb the trial judge’s decision absent an abuse of discretion. Here, the allegations on the videotape were not transcribed, and the videotape is not included in the record on appeal. Thus, this Court cannot specifically determine the content of the statements and their potential harm. The trial judge viewed the videotape and was in the best position to determine whether any statements were prejudicial or harmful. In his opinion, the statements were not sufficiently harmful to warrant a mistrial. We find no abuse of discretion in this decision.

3. Johns contends the trial court erred in restricting him from introducing evidence or cross-examining witnesses about other individuals that allegedly molested the victim. We find no error.

Evidence that the victim previously accused someone other than the defendant of sexual misconduct is generally not admissible. It is admissible only under certain limited circumstances, including: (1) to show that someone other than the defendant caused the victim’s injuries; (2) to show that the victim lacks credibility if the victim’s prior allegations were false; and (3) to show other possible causes for the victim’s symptoms.

Johns contends he should have been permitted to introduce evidence or cross-examine witnesses about other indicted individuals who allegedly molested the victim in order to establish (1) that someone other than Johns caused the victim’s injuries, and (2) other possible causes for the victim’s behavioral or medical symptoms. However, these exceptions to the general rule of inadmissibility do not apply here.

The medical testimony showed that there was no physical evidence of child molestation or sexual abuse. In addition, the state did not present any testimony regarding the child abuse accommodation syndrome. And, although Johns’ expert witness testified that the victim suffered from a psychological disorder which could include telling lies, there was no evidence that the victim ever made any false allegations of child molestation. There is simply no evidence in the record, medical or otherwise, that anyone other than Johns committed the acts of child molestation charged here, and the trial court did not abuse its discretion in ruling that evidence of other alleged molestations was not relevant to the present molestation charges.

4. Johns contends the trial court erred in excluding evidence of specific instances of lying by the victim. These instances were allegedly acquired from the victim’s grandmother and a Department of Family & Children Services caseworker. While the trial court permitted Johns’ expert witness to testify as to general character questions, it excluded testimony about specific instances of lying by the victim. However, we need not reach the merits of this issue because Johns failed to make an offer of proof regarding any specific instances of lying by the victim.

Because the expert who was to testify about the instances of lying was a defense witness on direct examination, Johns was required to make a proffer in order to preserve this issue for appellate review. However, Johns made no attempt to show the substance of his witness’ excluded testimony. If Johns “did not intend to acquiesce in the court’s ruling, he should have made apparent in some proper way what the testimony would have been, for without this showing this court cannot determine whether injury resulted.”

Moreover, even if Johns had not waived this issue, we find no merit in his argument. While a witness may be impeached by a showing of general bad character, specific acts of bad character are not admissible. “Instances of specific misconduct may not be used to impeach a witness’ character or veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude.” The trial court’s ruling excluding such testimony was correct.

Decided December 12, 2001

Reconsideration denied January 10, 2002

David A. Fowler, for appellant.

Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Robert N. Peterkin, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       See Adams v. State, 208 Ga. App. 29, 32 (2) (b) (430 SE2d 35) (1993).

        Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989).

       (Footnotes omitted.) Roberts v. State, 242 Ga. App. 621, 626 (2) (b) (530 SE2d 535) (2000).

       See Odom v. State, 243 Ga. App. 227, 231 (1) (d) (i) (531 SE2d 207) (2000); Paz v. State, 239 Ga. App. 278 (1) (521 SE2d 362) (1999).

        Cowards v. State, 266 Ga. 191, 194 (3) (c) (465 SE2d 677) (1996); Culliver v. State, 247 Ga. App. 877, 880 (3) (545 SE2d 392) (2001).

        Hardeman v. State, 247 Ga. App. 503, 504 (3) (544 SE2d 481) (2001).

       Id. at 504-505.

       See Berry v. State, 235 Ga. App. 35, 37-38 (2) (508 SE2d 435) (1998).

       See Fuss v. State, 271 Ga. 319, 321 (3) (519 SE2d 446) (1999); Cruz-Padillo v. State, 262 Ga. 629, 631 (4) (422 SE2d 849) (1992).

       (Citation and punctuation omitted.) Fuss, supra.

       OCGA § 24-9-84; Johnson v. State, 244 Ga. App. 128, 132 (1) (a) (534 SE2d 480) (2000).

       (Citations and punctuation omitted.) Jones v. State, 226 Ga. App. 420, 422 (1) (487 SE2d 56) (1997).


text:
    A01A2378.
    HUDSON v. THE STATE.
    (558 SE2d 420)
   Eldridge, Judge.

Following a bench trial in the State Court of Cherokee County, William Leroy Hudson was found guilty of DUI — excessive blood alcohol content. He appeals and, in his sole enumeration of error, contends the trial court erred in denying his motion to suppress the results of his breath test because the State trooper did not have a reasonable articulable suspicion to perform a Terry investigative stop of Hudson’s vehicle. Since the facts of record demonstrate reasonable suspicion to support the trooper’s stop of Hudson’s vehicle, we affirm the judgment below.

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. The inquiry is whether the officer had reasonable grounds, based on specific and articulable facts, for making the stop. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.

Furthermore, in considering the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

At the hearing on the motion to suppress, Georgia State Patrol Trooper Dane Kirby testified that at approximately 10:00 a.m. while on patrol in the Canton area of Interstate 575, he received a radio dispatch stating that he should be on the lookout for a black 1990s Ford F-10 pickup truck being driven by a male. The trooper testified that “[t]hey gave us the tag number and also stated that the address on the driver’s license was somewhere off of Sixes Road. They specified the road Hodgkins Trail or something, I think it said.” The officer was told that the driver of the Ford had attempted to obtain a driver’s license at the licensing post in Canton; the employees thereof smelled alcohol on the suspect’s breath, and after he was refused service and drove off, the employees called the police.

The trooper waited on the top of the exit ramp at Sixes Road and 1-575, as that was the Ford’s suspected direction of travel. Approximately 15 minutes later, the trooper spotted a black Ford pickup on Sixes Road. After confirming the make, color, and tag number of the vehicle, the trooper executed the stop. Hudson was driving the vehicle. Investigation resulted in Hudspn’s arrest for DUI. His subsequent breath test showed a 0.110 blood alcohol content.

At trial, the State called Melissa Childers of driver’s license Post 28 in Canton. She identified Hudson as the man who entered the post smelling of alcohol on the date in question. Childers testified that, based on the smell of alcohol, she refused Hudson service; he became irate; and he left in his vehicle. Childers’ supervisor, who was sitting beside Childers during her exchange with Hudson, then called the police. Held:

Hudson contends that Trooper Kirby did not have a reasonable articulable suspicion to perform the stop of Hudson’s vehicle because he had no personal knowledge of any wrongdoing by Hudson. We disagree.

Information received by an officer from a dispatcher’s call may provide articulable suspicion to perform an investigative stop.

Moreover, the information about Hudson’s intoxicated condition came from a known, law-abiding concerned citizen who testified at trial and who on the day in question had the opportunity to personally observe Hudson and smell the alcohol on his breath.

When . . . information is supplied by an identified interested citizen, the citizen’s credibility is not as suspect and the analysis is not as stringent as when information is given by an anonymous tipster; a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.

Decided December 11, 2001

Reconsideration denied January 10, 2002.

Abernathy & Ballinger, H. Stephen Abernathy, Eric A. Ballinger, for appellant.

G. Channing Ruskell, Solicitor-General, Barry W. Hixson, Assistant Solicitor-General, for appellee.

In addition, the trooper was given specific information about the make, year, color, and model of Hudson’s vehicle, as well as the direction in which it would be traveling. All of this information was corroborated before the stop. Here, “the citizen had obtained his information through some personal observation, and the details of the tip were corroborated by the personal observation of the investigating officer.”

As the information about Hudson’s intoxication came from a reliable source who provided specific details regarding Hudson’s vehicle and direction of travel, and these specific details were corroborated by the trooper’s observations, there existed a reasonable articulable suspicion for a brief, investigative Terry stop of Hudson’s vehicle. There was no error in the trial court’s denial of the motion to suppress.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

       (Citations and punctuation omitted.) Hansen v. State, 222 Ga. App. 537, 538 (1) (474 SE2d 735) (1996).

        Peters v. State, 242 Ga. App. 816, n. 1 (531 SE2d 386) (2000); Jackson v. State, 230 Ga. App. 292, 296 (6) (496 SE2d 315) (1998).

        Overand v. State, 240 Ga. App. 682, 683 (523 SE2d 610) (1999).

        Yearwood v. State, 239 Ga. App. 682, 683 (521 SE2d 689) (1999).

       (Punctuation omitted.) Jones v. State, 195 Ga. App. 868, 869 (2) (395 SE2d 69) (1990).


author: Ruffin, Judge.

text:
    A01A2500.
    SHAVER v. CITY OF PEACHTREE CITY.
    (558 SE2d 409)
   Ruffin, Judge.

Eric Shaver was arrested for underage possession of alcohol, and he was issued a uniform traffic citation. Prior to Shaver’s trial in the Municipal Court of Peachtree City, he moved to dismiss the charge, asserting that the citation was not a valid charging instrument for a nontraffic offense. The municipal court denied Shaver’s motion, and he was convicted of the offense. Shaver then applied to the superior court for certiorari, which that court denied. We granted Shaver’s application for discretionary appeal, and for reasons that follow, we reverse.

Pursuant to Art. VI, Sec. I, Par. I of the Georgia Constitution, “[m]unicipal courts shall have jurisdiction over ordinance violations and such other jurisdiction as provided by law.” The law permitting the use of traffic citations as charging instruments provides that

[i]n all misdemeanor cases arising out of violations of the laws of this state, relating to (A) the operation and licensing of motor vehicles and operators; (B) the width, height, and length of vehicles and loads; (C) motor common carriers and motor contract carriers; or (D) road taxes on motor carriers as provided in Article 2 of Chapter 9 of Title 48, the defendant may be tried upon the uniform traffic citation and complaint provided for in Article 1 of Chapter 13 of Title 40.

“Where, as here, the language of the statute is plain and unequivocal, judicial construction is not only unnecessary but is prohibited.” The language in OCGA § 17-7-71 (b) (1) is both plain and unequivocal, and nothing in this Code section provides for trying a defendant for the misdemeanor of underage possession of alcohol upon a uniform traffic citation. Thus, Peachtree City lacked a valid charging instrument. Accordingly, we agree that the municipal court lacked jurisdiction to try Shaver for such offense.

On appeal, Peachtree City asserts that “[t]here is no case or statutory authority that either authorizes or prohibits the [uniform traffic citation] from being used to charge non-traffic misdemeanors and city ordinances, as well as traffic charges, in the municipal courts.” The relevant issue is not whether any law prohibits the use of traffic citations as charging instruments for misdemeanor offenses, but whether any law authorizes such use. None does.

OCGA § 17-7-71 (b) (1), which lists the offenses for which a defendant may be tried upon a uniform traffic citation, addresses this very issue. Because the list of offenses contained in the Code section is finite — i.e., it does not specify that it is without limitation — we construe the statute as comprehensive. Indeed, this Court acknowledged as much in State v. Rustin, in which we concluded “that a uniform traffic citation and complaint may serve as an accusation only for traffic offenses, and may neither be used to prosecute nontraffic offenses nor amended to add such pursuant to OCGA § 17-7-71 (f).” Accordingly, the municipal court lacked jurisdiction. And, “[w]hen a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity” and must be reversed.

Decided December 3, 2001

Reconsideration denied January 10, 2002

Saia, Richardson & Meinken, Joseph J. Saia, Lloyd W. Walker, for appellant.

Webb, Lindsey, Collins, Jones & Wade, Richard P. Lindsey, Martin C. Jones, Christy R. Jindra, for appellee.

Judgment reversed.

Johnson, P. J, and Ellington, J., concur.

       OCGA § 17-7-71 (b) (1).

        State v. Sterling, 244 Ga. App. 328, 330 (2) (535 SE2d 329) (2000).

       See Weatherbed v. State, 271 Ga. 736, 738 (524 SE2d 452) (1999) (“Without an indictment, the trial court had no jurisdiction to accept [the defendant’s] plea and sentence him”).

       See id. at 739 (parties cannot confer subject matter jurisdiction on court “that does not otherwise have it,” and court cannot exercise such jurisdiction without legal authority).

       See Ga. Physical Therapy v. McCullough, 219 Ga. App. 744, 745 (466 SE2d 635) (1995).

       208 Ga. App. 431 (430 SE2d 765) (1993).

       Id. at 435 (2). See also Bush v. State, 273 Ga. 861 (548 SE2d 302) (2001) (city court with jurisdiction over offenses “ ‘relating to and regulating traffic’ and all other crimes and offenses not above the grade of misdemeanor ‘arising out of the same occurrence as such traffic offense’ ” did not have jurisdiction over misdemeanor offense that was not traffic-related).

       Id. at 862.

       (Punctuation omitted.) Id.


text:
    A02A0261.
    BANKHEAD v. THE STATE.
    (558 SE2d 407)
   Eldridge, Judge.

On May 21, 1992, a DeKalb County jury convicted Donald C. Bankhead of felony murder, aggravated assault, kidnapping, and burglary. Pertinently, he was sentenced to ten years to serve on the kidnapping count. Thereafter, the superior court granted his motion for new trial, as amended, for the failure to conduct an evidentiary hearing under Uniform Superior Court Rule 31.3 (B) prior to the introduction of similar transactions evidence at trial. In August 1993, under the terms of his negotiated plea agreement, the defendant entered a guilty plea to voluntary manslaughter (reduced from felony murder), aggravated assault, kidnapping, and burglary. He was then sentenced concurrently to 20 years to serve on each count. The defendant appeals from the superior court’s order denying his pro se motion to vacate void judgment and motion for resentencing, as amended, variously contending that his sentence to twenty years confinement on the kidnapping count was illegal in that the superior court’s sentencing authority thereon was limited to ten years confinement as originally imposed in the first trial. In a related claim of error, the defendant challenges the effectiveness of counsel upon the entry of his guilty plea, arguing (a) that counsel wrongly advised him that the maximum permissible punishment for kidnapping was twenty years confinement despite the ten-year sentence imposed thereon in his first trial, and (b) that counsel “induced” his plea by promising to represent him before the parole board and to have him released from prison within fifty-two months. Finding these claims of error to be without merit, we affirm.

1. Although it did so erroneously, characterizing defendant’s motion as a motion to modify sentence, the superior court did not err in denying the defendant’s motion to vacate void judgment and motion for resentencing, as amended. See, e.g., Frederick v. State, 226 Ga. App. 540, 542 (1) (487 SE2d 107) (1997) (“ ‘[We affirm a] trial court’s ruling . . . it if is right for any reason.’ ”).

The grant of a new trial eliminates everything which is pending in the old trial. When a new trial is granted, the effect is to set aside all proceedings in the old trial. See U. S. Fidelity &c. Co. v. Clarke, 187 Ga. 774, 782 (2 SE2d 608) [(1939)]. “Where a new trial has been granted, the case stands ready for trial as if there had been no trial. The effect of the grant of a new trial by [an appellate] court is to require the case to be heard de novo unless specific direction be given in regard thereto. [OCGA § 5-5-48]; Anderson v. Clark, 70 Ga. 362 (2) [(1883)].” Leventhal v. Baumgartner, 209 Ga. 404 (73 SE2d 194) [(1952)].

Reagan v. Reagan, 221 Ga. 173, 174 (143 SE2d 736) (1965); see also Burks v. United States, 437 U. S. 1, 14-17 (98 SC 2141, 57 LE2d 1) (1978) (as a general rule, a post-conviction reversal or grant of a motion for new trial which is not based on insufficiency of the evidence does not preclude retrial).

In light of the foregoing, the defendant’s sentence to ten years confinement on the kidnapping count in the first trial was rendered a nullity when the superior court granted him a new trial. It follows that such sentence was wholly ineffective as a limitation on the superior court’s sentencing authority on the kidnapping count when the defendant later entered his plea of guilty thereon. As a sentence authorized by law, OCGA § 16-5-40 (b) (kidnapping punishable by ten to twenty years imprisonment), the complained-of sentence to twenty years confinement may not be deemed void for illegality. A sentence is void where the court has imposed punishment which the law does not allow. Hill v. State, 249 Ga. App. 776, 777 (1) (552 SE2d 430) (2001); Battle v. State, 235 Ga. App. 101, 102 (508 SE2d 467) (1998). Neither does the imposition of the maximum permissible sentence on the kidnapping count evidence any abuse of discretion as to sentencing in that the superior court imposed its sentences concurrently upon defendant’s guilty plea and gave the defendant credit for time served.

Decided December 3, 2001

Reconsideration denied January 10, 2002

Donald C. Bankhead, pro se.

2. There also is no merit in the defendant’s claim that his motion to vacate void judgment should have been granted on the basis of ineffective assistance of counsel. Initially, we note that defendant’s claims of ineffectiveness are properly before this court in that the defendant, pro se, is for the first time appearing in this case on appeal. Threlkeld v. State, 250 Ga. App. 44, 45 (1) (550 SE2d 454) (2001). However, we find no deficiency in trial counsel insofar as he advised the defendant that upon acceptance of his guilty plea, the superior court could sentence him to 20 years in prison on the kidnapping count. See Division 1. Further, the defendant points to no evidence of record showing deficiency in trial counsel for making any promises inducing him to plead guilty. Quite to the contrary, the record reflects that upon the superior court’s questioning to determine the providence of his guilty plea, the defendant denied any promises of leniency, threats, or coercion; denied having any questions concerning his plea; and agreed that he was pleading guilty knowingly, voluntarily, and intelligently upon consultation with counsel.

“To prove ineffectiveness of trial counsel, the defendant must show that his [or her] trial counsel’s performance was deficient and that the deficient performance prejudiced him [or her].” Powell v. State, 271 Ga. 575, 576 (3) (522 SE2d 656) (1999). The defendant having failed to establish any deficiency in counsel, we conclude that trial counsel was not ineffective. Id.; see also Reed v. State, 246 Ga. App. 373, 375 (3) (540 SE2d 636) (2000) (“Where a claim of ineffectiveness is raised for the first time ... on appeal, and such claim could not have been raised earlier, we . . . address the merits of the claim if we can do so as a matter of law based upon the existing record.”). Further, even had the defendant established ineffectiveness in trial counsel, he has cited no authority for the proposition that a judgment on sentence might be voided on such basis as well as for illegality.

3. In light of our disposition of Divisions 1 and 2, we need not address the defendant’s remaining claims of error.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

J Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

       A mistrial resulted as to the malice murder count of the indictment.

       The malice murder count of the indictment was nolle prossed.