author: Blackburn, Judge. Beasley, Chief Judge, Beasley, Chief Judge,

text:
    A96A0647.
    MILLAR ELEVATOR SERVICE COMPANY et al. v. O’SHIELDS et al.
    (475 SE2d 188)
   Blackburn, Judge.

Defendants MARTA and Millar Elevator appeal the trial court’s denial of their motion for summary judgment in the suit brought by O’Shields and his wife. O’Shields was injured when he and a coworker fell at the Five Points MARTA Station while riding a descending escalator that suddenly stopped with a loud noise and threw them forward.

MARTA contracted with Millar Elevator to assume responsibility to maintain, inspect and service the escalators. Millar’s serviceman, Clark, conducted the regular bi-monthly maintenance on the escalator for the six months prior to the incident. The servicemen were provided with a checklist of items to be inspected for defects, irregularities or malfunctions, and they noted on a form all maintenance and repairs made. When an escalator broke, MARTA contacted Millar, who would complete an “Emergency Call Log,” or blotter sheet, that described the nature of the problem, the name of the MARTA employee contacting Millar and the time the call was received, the name of the Millar serviceman and the time he was sent out, a description of how the problem was resolved, and the time the work was completed.

Nine days before O’Shields’ fall, Clark performed the regular bimonthly maintenance. Linsey, another Millar serviceman, was on call for emergencies the morning of the incident and was instructed to investigate the problem. He found only one defect in the escalator. A rubber tire had become partially detached from the frame of one of its 140 to 160 step rollers. The step then became higher on the unimpaired side of the step, causing an upthrust switch to be tripped, a safety measure installed for the purpose of stopping the escalator.

1. In their motion for summary judgment, defendants attached ah expert affidavit of Robert Lauer, an engineer specializing in elevator and escalator operations. His opinion was that Millar committed no act of negligence. At O’Shields’ behest, the court struck the affidavit on the ground that it relied on documentation not part of the record or attached to the affidavit, as required by OCGA § 9-11-56 (e). O’Shields cites Augustine v. Frame, 206 Ga. App. 348 (425 SE2d 296) (1992), and King v. Sheraton Savannah Corp., 194 Ga. App. 618 (391 SE2d 457) (1990), for support. The documents are bi-monthly maintenance tickets, blotter sheets, MARTA police reports and other accident reports pertaining to the incident, and the ANSI A17.1 Safety Code for Elevators and Escalators.

OCGA § 24-9-67 provides that “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” O’Shields argues that although serviceman Clark’s affidavit attaches certain maintenance time tickets and blotter sheets, Lauer’s affidavit does not show whether they are the same records he reviewed. These documents, which are part of the record, are sufficiently identified by Lauer to assure that they are the ones upon which his opinion was based. Thus his opinion could be tested. See Hall v. Okehi, 194 Ga. App. 721, 722 (1) (391 SE2d 787) (1990).

O’Shields further argues that since Lauer did not personally inspect the escalator, his opinion is not based on personal knowledge. Although an expert generally cannot state his opinion based on observations or reports not admitted in evidence, an expert may give an opinion based on facts which he personally observes, and where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, on the other’s findings. OCGA § 24-9-67. Brown v. State, 206 Ga. App. 800, 801 (427 SE2d 9) (1992); Wood v. Browning-Ferris Indus. of Ga., 206 Ga. App. 707 (2) (426 SE2d 186) (1992). This is true whether or not the expert went to the scene. Jones v. Ray, 159 Ga. App. 734, 736 (4) (285 SE2d 42) (1981).

O’Shields also objected to the references to the ANSI A17.1 Safety Code for Elevators and Escalators, since it was not part of the record. Expert testimony as to the practices of an industry are acceptable. OCGA § 24-9-67; Dan Gurney Indus. v. Southeastern Wheels, 168 Ga. App. 504, 506 (4) (308 SE2d 637) (1983). This would include an expert’s reliance on a Code used as the safety standard for an industry in forming his opinion. In this instance, the Code is the legislatively adopted standard in Georgia. OCGA § 8-2-104 (c). To the extent Lauer cited documents not in the record, such as the police reports, he relied on none of them in reaching his opinion.

2. The trial court’s order denied defendants’ motion for summary judgment on the ground that there were factual issues in dispute. MARTA and Millar argued that because O’Shields presented no evidence of negligence, the court essentially applied the doctrine of res ipsa loquitur, which was erroneous as demonstrated by Ellis v. Sears Roebuck & Co., 193 Ga. App. 797 (388 SE2d 920) (1989). Ellis held that the doctrine does not apply to mechanical devices because they “get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone.” Id. at 798.

O’Shields counters that he did not assert the doctrine and the court did not apply it. He maintains he did in fact present some evidence of MARTA and Millar’s negligence, and thus it was unnecessary for him to assert res ipsa loquitur. This is not a case where the malfunction would not have occurred but for the negligence of someone who is in exclusive control of the instrumentality. Ellis, supra.

O’Shields argues that MARTA and Millar owed the duty of extraordinary care to him. OCGA § 51-1-3 defines extraordinary diligence as “that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances. . . . The absence of such extraordinary diligence is termed slight negligence.” He further relies on OCGA § 46-9-132, which provides that “[a] carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” See Mattox v. MARTA, 200 Ga. App. 697 (409 SE2d 267) (1991).

The duty of extraordinary care is thus imposed on MARTA because it was operating an escalator. A long line of decisions in this state has so held. See, e.g., Grant v. Allen, 141 Ga. 106 (80 SE 279) (1913); Gaffney v. EQK Realty Investors, 213 Ga. App. 653 (445 SE2d 771) (1994); Helmly v. Savannah Office Bldg. Co., 13 Ga. App. 498 (79 SE 364) (1913). The owner or operator of an elevator or escalator “is not a common carrier in the sense that he is bound to serve all the public; yet his duty as to protecting passengers in the elevator is the same [under this section] as that chargeable to carriers of passengers by other means.” Grant, supra at 108 (1). It is not, however, an insurer of safety. Ellis, supra at 798; James v. Otis Elevator Co., 854 F2d 429 (11th Cir. 1988).

Georgia has not addressed the issue of whether Millar, in its capacity as the escalator servicer, is held to the same duty as a common carrier. Other jurisdictions are divided on the issue. See Tait v. Armor Elevator Co., 958 F2d 563, 567 (3rd Cir. 1992). However, even if Millar’s duty to plaintiffs is one of ordinary care, see Gaffney, supra, on the facts before us, such a standard would be heightened due to the risk of injury posed to those traveling on an escalator. “The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.” Prosser and Keaton on Torts, p. 208, § 34 (5th ed. 1984).

3. With these standards in mind, a jury’s consideration of the facts in the present case is required. The defendants’ expert averred that “[v]isual inspection rarely will indicate that the bond between the tire and roller is about to fail.” (Emphasis supplied.) This averment does not mean that visual inspection is unnecessary. Because visual inspection can, albeit on rare occasions, indicate that the bond between the tire and roller is about to fail, such an inspection might be required, especially considering the potential risks herein involved. Furthermore, because 140 to 160 rollers on the escalator have the potential to fail, and a visual inspection could indicate a failure is imminent, a jury must determine the respective liability of MARTA and Millar under the facts herein.

The dissent’s contention that the uncontroverted evidence indicates that either visual inspection or walking inspection is successful in detecting a broken step roller does not address the issue of detecting a roller which is about to fail. Such issue is addressed by defendants’ expert’s averments and not by Jim Marcusky’s deposition testimony relied upon by the dissent.

Based on the foregoing, the trial court correctly denied defendants’ motion for summary judgment.

Judgment affirmed.

McMurray, P. J, Pope, P. J., Johnson and Ruffin, JJ., concur. Beasley, C. J, Birdsong, P. J., Andrews and Smith, JJ., dissent.

Beasley, Chief Judge,

dissenting.

I respectfully dissent. I concur in Divisions 1 and 2, but not in Division 3.

Even applying the heightened standard of care to these facts, we should reverse, since O’Shields has not presented any evidence to suggest that MARTA or Millar were even slightly negligent. He was required to do so, because the legal presumption of negligence which he seeks to marshal to his aid is no longer valid. The case he relies on, Piller v. Hanger Cab Co., 115 Ga. App. 260, 263 (154 SE2d 420) (1967), overlooked this Court’s rejection of this substitute for proof which is explained in Darlington Corp. v. Finch, 113 Ga. App. 825, 828-829 (149 SE2d 861) (1966). The uncontroverted expert’s affidavit states, “The very occasional failure of a step roller tire is inevitable on an escalator and cannot be avoided by proper maintenance. The tires have relatively long lives but their failure life is quite variable and cannot be predicted.”

O’Shields contends that if Clark had made a visual inspection by opening the pit and shining a light on the rollers as they moved by, rather than just walking on each step, he might have seen that the step roller was about to fail at the time he made his last inspection before the incident. Marcusky, the MARTA employee responsible for monitoring the Millar contract, testified at deposition that either method can successfully detect a defective step roller, and that one method is not more effective than the other. As for being able to determine if the roller was about to break by visual inspection, the only evidence even remotely supporting O’Shields’ contention is Lauer’s comment that “[v]isual inspection rarely will indicate that the bond between the tire and roller is about to fail.” Lauer also stated, “The very occasional failure of a step roller tire is inevitable on an escalator and cannot be avoided by proper maintenance. The tires have relatively long lives but their failure life is quite variable and cannot be predicted. . . . [The rollers] normally give no warning that they are about to fail. When one hears a noise or feels a rumble, the tire has already failed.”

O’Shields offers nothing but unsupported conjecture contradicting Lauer’s testimony that an escalator step roller’s failure “cannot be predicted.” Furthermore, Linsey testified that the rubber on the broken roller “looked fairly strong” and “hadn’t been worn very badly as opposed to others,” and that he had no idea why the step roller casing separated from the wheel. Visual inspection on September 21 would have revealed nothing more than visual inspection did on the day of the incident.

O’Shields’ contention does not create a factual dispute dependent on evidence; his assertion of “might have seen” is mere unsupported conjecture. Nor is there any evidence that the nature of the stop was the result of negligence. Since plaintiff O’Shields has the burden of putting forward some evidence of slight negligence which is unmet, his theory of liability necessarily fails. James v. Otis Elevator Co., 854 F2d 429 (II) (11th Cir. 1988).

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

Order of the Court.

On July 22, 1996, the appellants, Millar Elevator Service Company and Metropolitan Atlanta Rapid Transit Authority, filed a motion for reconsideration of this Court’s opinion dated June 28, 1996. The appellants contend that their motion is timely as this Court issued a substituted opinion on July 12, 1996. However, the appellants’ first motion for reconsideration was denied, and our substituted opinion merely revised the original opinion and did not change the judgment or the issue date. See Court of Appeals Rule 37 (f). Therefore, the appellants’ motion is untimely as a first motion for reconsideration, and appellants have failed to obtain an order of this Court allowing a second motion for reconsideration. Based on the foregoing, the appellants’ motion is hereby DISMISSED.

Beasley, Chief Judge,

dissenting.

The motion for reconsideration should be entertained on its merits because it addresses a substantive change in the opinion, which was made after the original motion for reconsideration addressed the first opinion. The change relates to the duty owed by Millar Elevator Service Company, and the majority opinion substituted a different legal duty than had been imposed in the original opinion.

Decided June 28, 1996

Reconsideration denied July 12, 1996 and Reconsideration dismissed July 31, 1996

Lokey & Smith, Malcolm Smith, Jon W. Burton, for appellants.

Adele L. Grubbs, Amelia G. Pray, for appellees.

Millar should be given the opportunity to seek reconsideration of this new ruling, which as the majority opinion acknowledged has not been previously stated in Georgia law. The purpose of motions for reconsideration cannot reasonably be served if they are not permitted after a significant substantive change is made in the opinion. Rule 37 (d) does not apply to this situation but rather to those where a losing party simply attempts a second bite at the same apple.

The motion should be considered and granted.

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

       Since Lennie O’Shields’ claim is dependent on James’, the opinion refers only to his, for simplicity.

       We view the evidence in favor of the nonmovant O’Shields and give him the benefit of every doubt and indulge every reasonable inference in his favor on the motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).


source: Caselaw Access Project

author: Blackburn, Judge. Beasley, Chief Judge,

license: Public Domain

text:
    A96A0991.
    HAWKINS v. THE STATE.
    (474 SE2d 666)
   Blackburn, Judge.

Olton Ray Hawkins was convicted by a jury of statutory rape, sodomy, and aggravated child molestation. Following the denial of his pro se extraordinary motion for new trial, a habeas corpus court granted Hawkins permission to pursue an out-of-time appeal. He subsequently filed a notice of appeal, a sworn request to proceed in forma pauperis, a motion to appoint counsel, an affidavit of poverty, and a statement of account referencing the balance in his correctional institution account.

The court denied Hawkins’ motion for appointed appellate counsel and, in its order, stated: “[T]he defendant requested that an attorney be appointed to represent him in this matter. The court recalls that this defendant was able to retain Counsel for the pre-trial and trial of this matter. The Court is not satisfied that this defendant meets the requirements of indigency and accordingly denies defendant’s request for an attorney.”

1. Hawkins contends that because he is indigent, the trial court erred in not appointing counsel to represent him on this direct appeal. “Defendants in criminal cases have both a federal and a state constitutional right to be represented by counsel. . . . [I]t is only indigent defendants for whom the trial court must appoint counsel. This right extends to every indigent accused who indicates his desire to appeal.” (Citations and punctuation omitted.) Mapp v. State, 199 Ga. App. 47, 48 (403 SE2d 833) (1991). “The determination of whether a defendant is indigent, and entitled to have counsel appointed to pursue an appeal, lies within the discretion of the trial court, and this determination is not subject to review.” Barrett v. State, 192 Ga. App. 705, 707 (385 SE2d 785) (1989).

Because we are precluded by Barrett from reviewing the trial court’s findings as to Hawkins’ indigence, we will not pass upon the evidence in the record with respect to indigence. However, the record and the trial court’s order denying Hawkins’ motion indicate that the court failed to employ the proper procedure in making its indigence ruling. Review of a trial court’s procedure in making decisions as to appointed appellate counsel is authorized. See Mapp v. State, supra (case remanded with direction for the trial court to hold a hearing to determine indigence and appointment of appellate counsel).

“[WJhere a defendant retains trial counsel and then claims indigence on appeal, he bears the burden of making that fact known to the trial court or some responsible state official. If the trial court has no reason to believe that the defendant is indigent and cannot afford the services of retained counsel for the purpose of appeal, it is under no duty to inquire as to the defendant’s indigency and may presume that his retained counsel will protect his appellate rights.” (Citation and punctuation omitted.) Seay v. State, 220 Ga. App. 418, 419 (469 SE2d 496) (1996).

In Seay v. State, we relied upon Hopkins v. Hopper, 234 Ga. 236 (215 SE2d 241) (1975) to determine that once a defendant claims indigence, he rebuts the presumption that his retained counsel will protect his appellate rights. Hawkins had retained counsel and then informed the trial court of his indigence on appeal, • but the trial court’s order illustrates that the basis of its denial was the court’s recollection that Hawkins had retained trial counsel. In resting upon this recollection, the trial court improperly relied upon the presumption that Hawkins’ retained counsel would protect his appellate rights. Additionally, following the reasoning of Seay, the court had a duty to conduct an inquiry as to Hawkins’ indigence. It is unclear what, if any, inquiry was made, and the record is silent as to whether the court conducted a hearing on indigence.

Accordingly, based upon the record and the order of the trial court relying upon its recollection of Hawkins’ retained counsel from a trial over a year and a half before, the order of the trial court is reversed, and the case is remanded for an inquiry and determination by the trial court as to Hawkins’ indigence at the present time. Any determination made should be independent of the presumption that retained counsel will protect Hawkins’ appellate rights.

2. Hawkins asserts ineffective assistance of trial counsel. In light of our holding in Division 1, it is unnecessary to address this enumeration of error.

Judgment reversed and remanded with direction.

Birdsong, P. J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I fully concur in the ruling that defendant Hawkins is entitled to a determination by the trial court of whether he qualified for court-appointed counsel at the time the appeal was permitted. However, because the majority agrees with Barrett v. State, 192 Ga. App. 705 (385 SE2d 785) (1989), that a trial court’s determination of indigence vel non is nonreviewable, I depart somewhat from the opinion.

Penland v. State, 256 Ga. 641 (352 SE2d 385) (1987), is the authority for Barrett. In Penland, the Supreme Court applied OCGA § 9-15-2 (a) (2) to the issue of appointed counsel in criminal cases as well as to the issue of payment of costs for a copy of the trial transcript, although the statute on its face applies only to court costs, such as the transcript. The fee for court-appointed counsel is not a court cost but is paid by the county or state and reimbursable to the state or county by an able defendant. OCGA §§ 17-12-5 (c), 17-12-13, and 17-12-40 (a). Nevertheless, OCGA § 9-15-2 was invoked.

The statute recites that “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.” The Supreme Court, recognizing that a criminal defendant does not have a per se right of appeal under either the Georgia constitution or the federal constitution, held that the statute did not deprive such an appellant of due process of law by establishing as unreviewable the facts found by the trial court in this regard. It also held that Penland was not deprived of equal protection either, because he did not claim treatment different from others similarly situated.

Even if OCGA § 9-15-2 relating to civil practice applies to the issue of indigence in criminal cases, reversal is not precluded, as the majority recognizes. As in Mapp v. State, 199 Ga. App. 47 (403 SE2d 833) (1991), the issue is not whether evidence supports the trial court’s finding but rather whether the trial court followed the prescribed procedure.

Decided August 9, 1996.

Olton R. Hawkins, pro se.

Robert B. Ellis, District Attorney, John D. Staggs, Jr., Assistant District Attorney, for appellee.

In Penland, the trial court afforded a hearing on the motion, so it is apparent that the court took into account evidence relevant to the fact questions. Hawkins not only was not heard, but his evidence of indigence was ignored. Although a hearing would not ordinarily be necessary in this context, and is not required by the statute, due process requires a finding of fact based on all the relevant evidence properly submitted. Evidence of Hawkins’ financial condition which has already been presented may suffice, but the court may permit more if it so chooses. See Uniform Superior Court Rule 29.2. As stated in Mapp, supra at 48, “[t]he determination of indigency calls for the exercise of discretion based upon consideration of relevant criteria of indigency.”

Without the trial court’s determination of Hawkins’ right to counsel on appeal in his present circumstances, Hawkins’ winning of an out-of-time appeal is a hollow victory; pursuit of appeal by a pro se party is fraught with procedural danger and poses the daunting task of recognizing substantive legal errors by an eye untrained in the law. As eloquently stated in McAuliffe v. Rutledge, 231 Ga. 1, 3 (200 SE2d 100) (1973), speaking of counsel on appeal: “The right to counsel is his most vital and precious right since any other rights the accused [or convicted] may possess will remain sterile unless he has effective counsel to assert them in his behalf.”

       Because Hawkins filed his brief and enumerations of error one day late, the State filed a motion to dismiss. We invoke our discretion provided pursuant to Court of Appeals Rule 26 (a) and deny the State’s motion to dismiss, as Hawkins is pro se.

       In Mapp’s case, this Court should have reversed the trial court’s order denying his motion for appointed counsel instead of dismissing the appeal. The Court decided the sole issue on appeal and held that the order was procedurally defective.


author: Blackburn, Judge.

text:
    A96A1326.
    GARDNER & WHITE CONSULTING SERVICES, INC. v. RAY.
    (474 SE2d 663)
   Blackburn, Judge.

Gardner & White Consulting Services, Inc. (GWCS), the administrator of an employee health plan, appeals a bad faith jury verdict for attorney fees on the basis that the trial court erred in denying its motions to dismiss and for directed verdict and in failing to properly charge the jury, all based on the contention that appellant owed no duty to appellee.

GWCS served as the plan’s administrator by virtue of an administrative agreement it entered into with the County. The agreement provided that GWCS would handle all manner of administrative tasks associated with the plan, including the adjustment of all claims submitted by the participants. In performing its adjustment, GWCS was to determine the eligibility of all claimants and evaluate the validity of their various claims, conducting “such examination as [GWCS] considers reasonably necessary to the determination.”

Other than providing the funds used to pay claims, the County did not participate in the initial adjustment process and became involved only when an appeal was lodged by a participant whose claim was denied. If GWCS initially found a claim to be valid, it had the authority to issue a check payable to the employee. Alternatively, if GWCS determined that a claim was not covered by the plan, it was authorized to issue the employee a denial stating the reasons therefor and to prepare a report on its finding to the County. Should an employee appeal GWCS’s denial of benefits to the County, GWCS was obligated to assist the County during the appeals process.

Grady R. Ray was employed by the Emanuel County Board of Commissioners in August 1992. GWCS rejected Ray’s claim for an October 1993 illness, a pin stroke, on the grounds that it was a preexisting condition not covered by the plan. Ray appealed directly to the County Board of Commissioners asserting that GWCS’s finding was incorrect. According to the express provisions of the plan, “[a] condition will no longer be pre-existing after ... 3 consecutive months during which no treatment is received.” Ray contended that he had not received treatment for any problem related to his October 1993 illness in the three months that preceded it. Ray also offered evidence that GWCS had never consulted his treating physician when it evaluated whether his condition was pre-existing. After the Board of Commissioners denied Ray’s appeal, he filed the underlying suit.

On the eve of trial, the County settled its dispute with Ray. As part of the settlement, the County paid damages to Ray and agreed to “submit to the [trial court] the attorney fees issue.” In return, the County was released. Ray then proceeded to trial solely against GWCS. The only issue tried was whether GWCS was liable to Ray for attorney fees pursuant to OCGA § 13-6-11 in making the determination that his October illness was not covered by the plan. OCGA § 13-6-11 provides for the award of litigation expenses when one party has acted in bad faith.

Finding in Ray’s favor, the jury awarded him attorney fees in the amount of $19,204. On appeal, GWCS does not challenge the jury’s determination that its action was taken in bad faith so as to justify the imposition of attorney fees. Rather, in three enumerations raising the same issue, GWCS argues that it never owed a duty to Ray in either tort or contract and, accordingly, the award of attorney fees was without basis.

Pretermitting the issue of whether GWCS owed Ray a duty in tort, Ray was the third-party beneficiary of the administrative agreement and thus had standing to bring the suit based on GWCS’s alleged failure to exercise its implied duty of good faith and fair dealing in performing its adjustment obligations under the administrative agreement. See Toncee, Inc. v. Thomas, 219 Ga. App. 539, 543 (466 SE2d 27) (1995) (every contract imposes upon each of the parties an implied duty of good faith and fair dealing).

“The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” OCGA § 9-2-20 (b); see Kirby v. Chester, 174 Ga. App. 881 (331 SE2d 915) (1985) (lender was third-party beneficiary of contract between attorney and borrower whereby attorney certified borrower’s title to land which was to secure the loan). “The remedies available to the beneficiary are exactly the same as would be available to him if he were a contractual promisee of the performance in question.” Reaugh v. Inner Harbour Hosp., Ltd., 214 Ga. App. 259, 261 (447 SE2d 617) (1994).

GWCS asserts that Ray was not intended to be the primary beneficiary of the contract and therefore is without standing to sue on the administrative agreement. “In order for a third party to have standing to enforce a contract under OCGA § 9-2-20 (b) it must clearly appear from the contract that it was intended for his or her benefit. The mere fact that the third party would benefit from performance of the agreement is not alone sufficient.” (Punctuation omitted; emphasis in original.) Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 349 (411 SE2d 75) (1991) (patient and her family were not beneficiaries of contract whereby hospital authority agreed to maintain a facility that would render medical care to the indigent); see also Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (324 SE2d 776) (1984) (minority-owned subcontractor was not the third-party beneficiary of a government construction contract containing a minority participation provision).

As authority that Ray should not be considered the intended beneficiary of the administrative agreement, GWCS cites to Backus v. Chilivis, 236 Ga. 500 (224 SE2d 370) (1976), wherein a group of citizens sued the company Glynn County hired to perform its ad valorem property appraisals, asserting that they were third-party beneficiaries of the company’s contract with Glynn County. Their claim to standing was rejected by the Supreme Court. “[W]e think it is clear from the entire contract that the company’s performance was to be rendered directly to the county for the county government’s benefit.” Id. at 502. We find Backus to be distinguishable. Unlike the present case, Backus did not involve a contract calling for the administration of a health care plan — the benefits of which the claimant had earned and was entitled to as an employee of the County. Rather, Backus involved the performance of certain duties for the benefit of the County.

The only function GWCS had was to determine whether or not employees were entitled to health benefits which they had earned as each claim was filed. It is clear that it was intended that this process be administered fairly for the benefit of the employee/claimants. While in Backus, any benefit to the private citizen by the appraisal function was indirect and merely incidental to the appraisal performed for the benefit of the County.

Moreover, unlike the agreement in Backus, GWCS did not render its performance directly to the County. Id. at 502. Rather, under the administrative agreement, GWCS was authorized to deal directly with plan participants and was authorized to pay a participant for a claim that it found to be valid or to inform a participant that his claim was being denied — all without County intervention. The County became involved in the adjustment process only when a plan participant appealed the denial of benefits by GWCS. While the County made the ultimate review, GWCS was initially and primarily obligated to be fair and just to claimants, including Ray.

The trial court did not err in denying appellant’s motions to dismiss and for directed verdict or in refusing to charge the jury that appellant owed no duty to appellee. Neither did the court err in submitting the case to the jury which resolved the matter against appellant.

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J., concur.

Decided August 9, 1996

Cheney & Cheney, Curtis V Cheney, Jr., for appellant.

Savage & Turner, Brent J. Savage, Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellee.

       In addition to the denial of benefits for his own illness in October 1993, Ray also contested the County’s determination not to provide benefits for the prior illnesses of his wife and stepdaughter, claiming that the County misled him into believing that he had dependent coverage at a time when he did not. These other claims involving Ray’s family focus solely on the County and are not involved in this appeal.

       As GWCS was the plan’s administrator, Ray could not sue GWCS for bad faith denial under OCGA § 33-4-6, a penalty provision which by its express terms applies only to insurers.


author: Andrews, Judge.

text:
    A96A1120.
    A96A1121.
    CODY v. THE STATE. SIMPSON v. THE STATE.
    (474 SE2d 669)
   Andrews, Judge.

Derek Cody and Tommy Bernard Simpson were jointly indicted and jointly tried for trafficking in cocaine in violation of OCGA § 16-13-31. They appeal from the judgments entered on jury verdicts finding each of them guilty as charged.

The State presented the following evidence: An informant told Gwinnett County police that he knew of two men interested in buying half of a kilogram of cocaine. Based on this information, a Gwinnett County narcotics detective posed undercover as a drug dealer in a so-called “reverse sting” operation. The informant arranged a meeting between the two men and the undercover detective and informed the detective he would accompany the men to the meeting and that they would arrive in a black Mercedes automobile. The undercover detective waited at the pre-arranged time and location in a parking lot adjacent to Gwinnett Place Mall. Other police officers in unmarked vehicles conducted surveillance of the area, operated two cameras to videotape the drug buy, and operated a recording device capable of receiving an audio transmission of the buy from a wireless transmitter concealed on the detective.

The detective observed the informant and Simpson walk toward him across the parking lot. Simpson was carrying a bag containing $9,000 in cash and told the detective he was ready to do business. Simpson handed the bag to the informant, who handed it to the detective. After the detective counted the money, he used a cellular phone to call another undercover officer posing as the detective’s accomplice, who brought the cocaine to the scene in an unmarked car. The informant asked Simpson if he wanted his friend to see the cocaine, and Simpson replied that was unnecessary because his friend trusted him. The detective gave the cocaine to Simpson, who inspected it by tasting and weighing it. Simpson was thereafter arrested at the scene and charged with trafficking in cocaine. A video and audio tape of the drug buy taken by police was introduced into evidence. The State also produced a statement given to police by Simpson in which he admitted he met with the undercover detective to purchase cocaine but stated he only expected to purchase about four ounces of cocaine. Based on his experience in investigating drug sales, the narcotics detective testified that half of a kilogram of cocaine would sell for between $9,000 and $11,000. The powdery substance sold to Simpson as cocaine, which police had obtained from a previous drug arrest, was weighed and tested at the State Crime Lab and proved to have a total weight of 593 grams, 85 percent of which was cocaine.

Simpson testified at trial that the informant was a friend helping him organize a business, that the informant set up and conducted the drug buy and tricked him into being at the scene of the buy, and that he played along with the drug deal out of fear for his own safety but had nothing to do with buying the cocaine. Simpson claimed the $9,000 used to purchase the cocaine was money he gave to the informant to open up a business account for him and that the informant borrowed the money from him to purchase the cocaine.

The State presented additional evidence related to Cody’s involvement in the cocaine buy. One of the police officers conducting surveillance at the scene of the drug buy testified he saw a black Mercedes in the parking lot and watched it at the time of the drug buy because the informant indicated the buyers would be in a black Mercedes. The officer testified that, while the drug buy was in progress, he observed the Mercedes move twice, once to a position closer to the buy where the driver’s side of the Mercedes had a direct line of sight to the buy and once when the officers moved in to arrest Simpson. Because of information provided by the informant about the buyers’ use of a black Mercedes and the suspicious location and movement of the Mercedes during the drug buy, the officers stopped the Mercedes and arrested Cody, who was the driver and sole occupant of the car. About $5,000 in cash was found in the car. Cody gave a statement to police which was introduced into evidence. He stated he followed Simpson and the informant to Gwinnett Place Mall in his sister’s black Mercedes, but he did not have anything to do with the drug buy and did not think Simpson would get him into any trouble. He initially denied having any knowledge of the cash found in the car. Later, he admitted he knew about the cash in the car but claimed it was money given to him by friends so he could buy and re-sell some clothes for profit. When asked how long he had been sitting in the Mercedes in the parking lot, Cody at first responded he did not know, then later stated he sat in the Mercedes for a couple of hours but did not know about the drug buy. Cody did not testify at the trial.

Case No. A96A1120

1. Cody claims the trial court erroneously denied his motion for a directed verdict acquitting him of the charged offense. Cody was charged with trafficking in cocaine in violation of OCGA § 16-13-31 under an indictment alleging he was knowingly in possession of more than twenty-eight grams of a mixture containing ten percent or more of cocaine. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Harvey v. State, 212 Ga. App. 632, 634 (442 SE2d 478) (1994).

Viewing the evidence on appeal, as we must, in the light most favorable to the jury’s determination of guilt, we conclude the evidence was sufficient under the Jackson v. Virginia standard to find Cody constructively possessed the cocaine and was guilty as a party to trafficking in cocaine by intentionally aiding and abetting in the commission of the crime. OCGA § 16-2-20. Of course, a finding that Cody constructively possessed the cocaine must be based on more than his mere spatial proximity to the cocaine, and evidence of Cody’s mere presence near the scene of the drug buy, without more to show his participation, would be insufficient to support his conviction. Harvey v. State, supra at 634. In the present case, there was evidence which supported the jury’s conclusion that Cody participated with Simpson in the purchase of the cocaine. Simpson’s statement during the drug buy that it was unnecessary for his friend to inspect the cocaine supported the informant’s report to the police that two men were involved in the drug buy. Cody’s presence near the drug buy at the pre-arranged time and location in a black Mercedes automobile further confirmed the informant’s report that the men would arrive at a certain time and place in a black Mercedes. The suspicious movement of the Mercedes by Cody during the drug buy to a position with a better view of the buy was evidence that Cody was acting in concert with Simpson in the purchase of the cocaine. The presence of a large amount of cash in the Mercedes along with Cody’s inconsistent statements to the police about his knowledge of the cash and the amount of time he was sitting in the car near the location of the drug buy provided further evidence of his participation in the crime.

The trial court correctly denied Cody’s motion for a directed verdict of acquittal.

2. Cody claims the trial court erroneously admitted his statement to the police over his objection that it was not voluntarily given.

The record shows that, prior to questioning Cody at the scene of his arrest, police informed him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Cody waived these rights and agreed to answer questions and never invoked his Miranda rights at any time during the questioning. Cody does not claim otherwise but asserts the statement he gave was involuntary because at one point during the questioning he told the detective a light was making him dizzy. The record reflects that, when Cody said he was dizzy, the detective asked him to sit down, Cody did so, the detective then asked more questions, and Cody gave coherent answers without further complaint. There is no evidence that any part of Cody’s statement was coerced by police or was involuntary. Compare Colorado v. Connelly, 479 U. S. 157 (107 SC 515, 93 LE2d 473) (1986).

The trial court properly overruled Cody’s objection and admitted the statement.

3. There is no merit to Cody’s claim that the trial court erred in its jury charge as to his election not to testify. Moreover, after the trial court asked if there were any exceptions to its charge, Cody’s counsel waived any objections by stating he had none and by failing to reserve the right to raise objections to the charge on motion for a new trial or on appeal. Lewis v. State, 215 Ga. App. 161, 164 (450 SE2d 448) (1994).

4. Cody claims the trial court erroneously denied his motion attacking the constitutionality of OCGA § 16-13-30 (d) as applied to him in this case.

Pursuant to OCGA § 16-13-30 (d), which mandates imposition of a life sentence for a second conviction for the sale of or possession with intent to distribute a controlled substance, the trial court sentenced Cody to life imprisonment after considering evidence that he had previously been convicted of possession of cocaine with intent to distribute. Cody’s conviction for the more serious offense of trafficking in cocaine under OCGA § 16-13-31 was sufficient in conjunction with his previous conviction for possession of cocaine with intent to distribute under OCGA § 16-13-30 (b) to trigger the mandatory life sentence provisions of OCGA § 16-13-30 (d). See Gilbert v. State, 208 Ga. App. 258, 259-262 (430 SE2d 391) (1993).

In imposing a life sentence, the trial court denied Cody’s motion contending the life sentence provisions of OCGA § 16-13-30 (d) are unconstitutional as applied to him in this case because Gwinnett County authorities selectively applied the statute in a racially discriminatory manner against black males. Cody, who is a black male, presented no evidence in support of this claim. The Supreme Court has previously ruled that such a claim has no merit in the absence of evidence of purposeful racial discrimination or selective enforcement against the defendant in his case. Stephens v. State, 265 Ga. 356 (456 SE2d 560) (1995); Cain v. State, 262 Ga. 598 (422 SE2d 535) (1992). In the absence of any evidence to support the claim, the trial court correctly denied the motion.

5. Since Cody provided no argument or citation of authority in support of his remaining enumerations of error, they are deemed abandoned. Court of Appeals Rule 27 (c) (2).

Case No. A96A1121

6. Simpson claims the evidence was insufficient to support his conviction because it demanded a finding that he was entrapped.

We disagree. Although Simpson gave testimony at trial which arguably raised the defense that his conduct was induced or solicited by the informant and that he had no predisposition to commit the crime, there was evidence which contradicted his assertion of entrapment. See OCGA § 16-3-25. Simpson gave a statement to the police admitting he intended to purchase some amount of cocaine from the undercover detective. The undercover detective’s testimony provided additional evidence of Simpson’s predisposition to commit the crime and willing participation in it. The evidence did not demand a finding of entrapment. Smith v. State, 206 Ga. App. 138, 139 (424 SE2d 371) (1992).

The evidence was sufficient for a rational trier of fact to find Simpson guilty beyond a reasonable doubt. Jackson v. Virginia, supra.

7. In his last four enumerations of error, Simpson claims the trial court erroneously excluded the admission of certain documentary evidence.

While cross-examining the arresting detective, Simpson’s defense counsel attempted to introduce a search warrant application and search warrant which had previously been issued to conduct a search of the informant’s residence in an unrelated drug investigation. After the detective stated he could identify the documents and was familiar with the search of the informant’s residence, defense counsel tendered the documents for admission. In addition to other objections, the prosecutor claimed the documents were inadmissible because they contained hearsay. The trial court ruled the documents were inadmissible because they contained hearsay statements by other persons but held defense counsel could question the detective about his personal knowledge of the prior search. There was no error in sustaining the hearsay objection.

The record reflects that, while the jury was out of the courtroom during a break in defense counsel’s cross-examination of the detective, a discussion ensued over whether defense counsel could introduce three additional documents during the continuing cross-examination. Defense counsel intended to introduce a copy of the informant’s previous federal indictment and conviction on a drug charge and the negotiated plea agreement he entered into with federal authorities on those charges. Defense counsel stated the documents would be offered to show the informant’s knowledge and experience in the drug trade. During a proffer made out of the jury’s presence, the detective testified he was unable to identify any of these documents. Although the trial court ruled the documents could not be admitted through cross-examination of the detective, the judge stated defense counsel could question the detective about his personal knowledge of the informant and that defense counsel could call the informant, whose identity was known, to question him about the documents. Without reaching any conclusion as to the relevance of the documents (see Simmons v. State, 174 Ga. App. 171, 177-178 (329 SE2d 312) (1985)), the trial court did not err by refusing to admit the documents during cross-examination of a witness who had no knowledge of the documents. Venable v. State, 203 Ga. App. 517, 518 (417 SE2d 347) (1992).

Decided August 12, 1996.

Wayne L. Burnaine, for appellant (case no. A96A1120).

Edwin J. Wilson, for appellant (case no. A96A1121).

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Judgments affirmed.

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


author: Beasley, Chief Judge.

text:
    A96A1196.
    BEEKS v. CONSULTECH, INC.
    (474 SE2d 675)
   Beasley, Chief Judge.

Beeks, the defendant in a suit on account, appeals from the judgment which was entered after a bench trial in which the court found that the principal amount claimed plus interest was due.

In two enumerations, Beeks contends on appeal that the money for the work of performing Phase II of a site assessment of his gas station is not due for two reasons. The first is that the contract included a condition precedent, which is payment for cost of the project, to Beeks, by the Georgia Underground Storage Tank Trust Fund (GUST). He asserts that this was part of the oral contract, necessitated because, as known by Consultech, he did not have funds to hire Consultech and thus made the agreement with Consultech on this condition. The second is that the contract was not completed, as the Environmental Protection Department has not issued a final ruling on the issue of ground contamination so that Beeks cannot sell the station.

Decided August 12, 1996.

Cynthia W. Harrison, for appellant.

Karl J. Howe & Associates, Thomas C. James, Jr., for appellee.

Both enumerations involve issues of fact, which the trial court resolved in plaintiff’s favor. The court did not make written findings of fact or conclusions of law, as is required when requested by any party. OCGA § 9-11-52 (a). There is no record of any request by a party either before trial nor within the time provided after entry of judgment. OCGA § 9-11-52 (c). We can only address what there is record to support. As stated in the statute, “When findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.” The enumerations require just such a consideration, as they relate to the sufficiency of the evidence to support findings of fact. Thus we are deprived of the assistance which such findings and conclusions provide to the appellate court, which is one of the purposes of the requirement. Brown v. Brown, 237 Ga. 201, 202 (227 SE2d 360) (1976). See also Coleman v. Coleman, 238 Ga. 183 (232 SE2d 57) (1977); Aycock v. Morris Indus., 171 Ga. App. 50, 51 (318 SE2d 780) (1984).

Oral findings are not sufficient. Aycock, supra. Unlike Aycock, we do not remand the case for written findings of fact and conclusions of law because OCGA § 9-11-52 (c) has since been amended. Their absence is ground for affirmance when they are necessary for resolution of the issue on appeal. See, e.g., Cage v. Chase Home Mtg. Corp., 212 Ga. App. 861 (1) (443 SE2d 504) (1994).

Even if we consider the oral findings, given to the parties by the court in explanation of its decision at the end of the trial, the judgment must be affirmed. The court found that there was a contract and that, although the parties expected GUST to pay the cost, the primary responsibility was Beeks’, with whom the contract was made. The court also found that the failure to obtain reimbursement was not Consultech’s but Beeks’, and that Beeks had received Consultech’s written demand for payment. Finally, the court found that the work contracted to be performed was completed. There is evidence to support the court’s findings. Thus, considering the oral findings, the judgment must be affirmed. Ga. Power Co. v. Harrison, 253 Ga. 212, 216 (4) (318 SE2d 306) (1984).

Judgment affirmed.

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


text:
    A96A1446.
    RUSSELL v. THE STATE.
    (474 SE2d 673)
   Beasley, Chief Judge.

Russell appeals his conviction of possession of cocaine. OCGA § 16-13-30.

Members of the Troup County Sheriff’s Department received an anonymous call informing them of drug use at the residence of Hardnett. When officers appeared on the scene, Hardnett answered the door and stated that Russell, a guest of hers, was in the kitchen. After admitting that she had smoked marijuana, Hardnett retrieved a partially burned marijuana cigarette from her bedroom and turned it over to the officers. She also admitted that she had smoked some crack cocaine furnished by Russell. In the kitchen area, where Russell was sitting, officers seized a pipe used to smoke crack cocaine. None was found in the residence, but several pieces of crack cocaine were found inside Russell’s car. Russell denied he had used or was in knowing possession of any crack cocaine, but a urine sample voluntarily given by him tested positive for cocaine. Hardnett admitted using cocaine and marijuana; she was not asked to give a urine sample.

Testimony introduced at trial showed that law enforcement authorities in Troup County have an unwritten policy under which they do not institute prosecutions for cocaine possession based only on evidence of cocaine residue in a smoking device. Russell was charged with felony possession of the pieces of crack cocaine found in his car. Hardnett was only charged with misdemeanor possession of the marijuana found in her residence.

Russell contends the trial court erred in denying his motion to dismiss the charge against him, and his motions for directed verdict of acquittal and new trial, because of selective prosecution in violation of his equal protection rights under the federal constitution. He asserts that Hardnett could have been prosecuted for possession of cocaine based on cocaine residue in the pipe found in her kitchen, her admission that she had been smoking crack cocaine, or the presence of cocaine in her system. Since she was not, he maintains that the selection of his case for criminal prosecution was based upon an arbitrary and unjustifiable standard.

“ ‘Some selective enforcement is not in itself a constitutional violation. [Cit.] To be a constitutional violation, the selective enforcement must represent an intentional and purposeful discrimination based upon some unjustifiable standard such as race, religion, or other arbitrary classification. [Cits.]’ [Cit.] ‘The burden (is) on (the defendant) to prove a selective prosecution by showing (1) that others generally are not prosecuted for the same misconduct, and (2) the decision to prosecute (him) was baséd upon impermissible grounds such as race, religion or exercise of constitutional rights.’ [Cits.]” (Emphasis omitted.) State v. Jackson, 188 Ga. App. 259, 260-261 (2) (372 SE2d 823) (1988).

Decided August 12, 1996.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

Prosecutors are vested with discretion in deciding what charges to bring against which defendants based on evidentiary considerations such as those present here. As in Jackson, no evidence was introduced tending to show that the decision to prosecute the defendant was based upon invidious discrimination or upon a desire to punish Russell for the exercise of his legal rights. No basis was shown for the avoidance of prosecution on the ground presented.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A96A1437.
    CORNELL v. THE STATE.
    (474 SE2d 634)
   McMurray, Presiding Judge.

Defendant was tried before a jury for kidnapping with bodily injury, rape, false imprisonment, possession of a firearm by a convicted felon and obstruction of an officer in that he did resist and obstruct S. E. Buice and G. R. Horner, law enforcement officers, in the lawful discharge of their duties, by offering and doing violence to the officers. The evidence adduced at trial reveals that defendant physically resisted arrest when law enforcement officers entered defendant’s home to execute a warrant for defendant’s arrest. The jury found defendant guilty of obstruction of an officer, but could not reach verdicts as to the other crimes charged in the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant challenges the sufficiency of the evidence, arguing that he did not wilfully and knowingly resist the officers when they entered his home. Defendant explains that he was merely attempting to stand when the arresting officers forcibly entered his home and violently subdued him with unwarranted force. This enumeration of error is without merit.

“On appeal of criminal convictions, we do not weigh the evidence or determine the credibility of witnesses; these are jury functions. When the jury has considered the evidence and made its finding, then on appeal the evidence is construed in favor of the jury’s verdict. Gurlaskie v. State, 196 Ga. App. 794 (397 SE2d 66). On review of a verdict of guilty, we merely determine whether the evidence is sufficient from which a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the offense as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Williams v. State, 202 Ga. App. 728 (1), 729 (415 SE2d 327). In the case sub judice, Officer S. E. Buice of the DeKalb County Police Department testified that defendant “made a lunge toward [him] from the couch” when he attempted to execute the warrant for defendant’s arrest. Officer Buice explained that a violent struggle then ensued and that he and other law enforcement officers subdued defendant and executed the warrant for defendant’s arrest. Detective G. R. Horner of the DeKalb County Police Department testified and corroborated Officer Buice’s testimony that defendant violently resisted arrest. This evidence alone is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of obstruction of an officer as charged in the indictment. Jackson v. Virginia, 443 U. S. 307, supra; Duitsman v. State, 212 Ga. App. 348 (1) (441 SE2d 888).

Decided July 22, 1996

Reconsideration denied August 13, 1996.

Letitia B. Delan, for appellant.

Eddie Cornell, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, Jacqueline S. Hardy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A96A1415.
    McGAUGHEY v. THE STATE.
    (474 SE2d 676)
   Birdsong, Presiding Judge.

Amy Suzette McGaughey appeals her conviction of possessing cocaine in violation of the Georgia Controlled Substances Act. She enumerates one error. Held:

Appellant contends that the trial court erred in denying her motion to suppress evidence of cocaine. We disagree and affirm the trial court’s decision.

Officer Davis and Officer Gallo were working undercover in the area of Knights Inn and Tucker Inn on Lawrenceville Highway, a well-known drug area. Officer Davis received a tip that possibly drugs were being sold at the Knights Inn, rooms 214 and 215. Around 11:00 p.m., the officers observed a 1977 Plymouth Salon occupied by a black male, a white male and appellant, parked in front of room 215. The occupants sat in the car for approximately ten minutes, then walked toward the front of Knights Inn. Appellant and the white male disappeared from sight while they circled around the building and then reappeared from the rear of Knights Inn. The couple behaved suspiciously and in an unusual manner, as appellant’s companion would occasionally stop walking and then suddenly rejoin appellant. Appellant and the white male then walked around the Tucker Inn, before returning to the Knights Inn. After stopping momentarily by a pay phone, the two proceeded to walk toward the cemetery. At this point, uniform units were called. The police officers approached appellant but did not arrest her. Officer Davis explained to appellant that she and her companion were in a drug area and asked why they were there. Before Officer Davis requested permission to search, appellant, “jovial and laughing,” held up her purse and arms and said, “Search me.” The search revealed crack cocaine in appellant’s purse.

Appellant argues that this evidence should be suppressed because any consent to search her purse was incurably tainted as she was unlawfully detained without the required “reasonable, articulable suspicion” that criminal activity may be afoot. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). This contention is without merit. Appellant was not placed under arrest when she was stopped by Sergeant Florea and Officer Davis. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. State v. Westmoreland, 204 Ga. App. 312, 313 (418 SE2d 822). Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual as long as the police do not convey a message that compliance with their request is required; and so long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. Id. Here, appellant has produced no evidence which suggests she was restrained by the police officers or coerced into consenting to a search. The officers never promised any benefit to appellant or produced a weapon. State v. Davis, 206 Ga. App. 238 (424 SE2d 878). In fact, the record reveals that appellant was jovial during her encounter with the police officers. In sum, the testimony indicates the officers merely inquired about appellant’s movements, noting that she was in a drug area.

Even if appellant was under arrest at the time of her initial questioning, there existed sufficient specific and articulable facts which, when taken together with their reasonable inferences, justified a reasonable scope of inquiry. State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314). “ ‘The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow . . . a criminal to escape.’ ” State v. Webb, 193 Ga. App. 2, 4 (386 SE2d 891), citing Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612). “What is demanded of the police officer as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” Brisbane v. State, 233 Ga. 339, 341 (211 SE2d 294). Where no circumstances at all appear which might give rise to an articulable suspicion — less than probable cause, but greater than mere caprice — that the law has been violated, the act of detaining an individual and its occupants must be judged as an impermissible intrusion on the rights of the citizen. Brooks v. State, 129 Ga. App. 109, 111-112 (198 SE2d 892). Here, the stop was neither arbitrary nor harassing as appellant was in a known drug area at 11:00 p.m., had a suspiciously unusual pattern of movement and parked in front of the hotel rooms which allegedly were being used to sell drugs. These circumstances might give rise to an articulable suspicion that appellant had violated or was about to violate the law; briefly detaining appellant was therefore permissible.

Finally, any suggestion that the search was involuntary or exceeded the scope of consent is unjustified. A valid consent eliminates the need for either probable cause or a search warrant. Wilson v. State, 210 Ga. App. 886, 887 (437 SE2d 867). The voluntariness of consent is determined by the totality of the circumstances, with no single factor controlling. Allen v. State, 200 Ga. App. 326, 327 (1) (408 SE2d 127). Here, although appellant was not advised of her constitutional rights before she consented to the search, the record reveals that at the time of the incident she was only briefly detained. Appellant was not physically punished nor subjected to prolonged questioning. Rather, appellant immediately and in a jovial manner volunteered her consent to a search. In fact, she held up her arms and purse while saying, “Search me,” even before the officers had requested permission to do so. All of these factors indicate that appellant’s consent was in fact voluntary.

The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect? Springsteen v. State, 206 Ga. App. 150, 152 (424 SE2d 832). Appellant did not indicate to the officers that they could only search her person or that they could not search inside the medicine bottle which contained the crack cocaine. Appellant simply said, “Search me,” while holding her purse forward. A reasonable person could have found that appellant’s verbal and physical actions indicated her consent to search the entire contents of her purse.

Accordingly, we hold that appellant was properly stopped by the police officers and voluntarily consented to a search of the contents of her purse. The trial judge did not err in denying appellant’s motion to suppress the evidence found in appellant’s purse.

Decided August 13, 1996.

Timothy T. Herring, for appellant.

J. Tom Morgan, District Attorney, Tamar P. Stern, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A1434.
    GREEN v. LANFORD.
    (474 SE2d 681)
   Beasley, Chief Judge.

Green filed this complaint against Lanford, the administrator of Bentley’s estate, to recover for personal injuries sustained in an automobile accident between Green and Bentley. Lanford moved for summary judgment on the ground that Green’s attorney Beskin entered into a binding settlement of this matter with Bentley’s automobile liability insurer, Allstate Insurance Company. The appeal is from the grant of Lanford’s motion.

Approximately six weeks after the accident, Green signed a contingency contract authorizing Beskin to represent her. The contract did not expressly authorize Beskin to negotiate a settlement or place any limitations on his authority to do so. Beskin testified that Green in fact authorized him to settle her case without placing any limitations on his authority. Green, on the other hand, testified she never gave such authority.

Several days after the contingency contract was signed, Beskin notified Allstate that he represented Green, at which time he returned a $900 settlement check Allstate had previously tendered to Green. Allstate’s claim representative Souther testified that at no time during settlement negotiations did anyone inform him or Allstate of any limitations by Green on Beskin’s authority to negotiate a settlement. Nine days after notifying Allstate, Beskin reached a $3,250 settlement with Souther. Green refused to accept it, stating that her medical expenses alone exceeded the settlement amount.

The trial court granted Lanford’s motion for summary judgment under the authority of Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983), where the Court held: “Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. [Cits.] . . . The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties. [Cits.] Therefore, from the perspective of the opposing party, in the absence of knowledge of express restrictions on an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority. The client’s remedy, where there have been restrictions not communicated to the opposing party, is against the attorney who overstepped the bounds of his agency, not against the third party.” (Footnote omitted.) Id. at 674-675 (2). The Supreme Court recently reaffirmed its holding in Brumbelow, in Pembroke State Bank v. Warnell, 266 Ga. 819, 821 (1) (471 SE2d 187) (1996).

Decided August 13, 1996.

Linwood R. Lovett, Paul R. Ayerbe, for appellant.

In reliance on Lewis v. Uselton, 202 Ga. App. 875, 876 (1) (416 SE2d 94) (1992), and Addley v. Beizer, 205 Ga. App. 714, 715 (1) (423 SE2d 398) (1992), Green argues that Brumbelow does not entitle Lanford to summary judgment. The cited cases are not on point. In Lewis, the question of the attorney’s authority to settle the case was being litigated between the attorney and his clients, not between the opposing party and the client as here. In Addley, we determined that the attorney who entered into the settlement was not authorized to represent the parties against whom the settlement was sought to be enforced. It is uncontested that Beskin was authorized to represent Green and that no restrictions by Green on Beskin’s authority were ever communicated to Allstate.

The allegations in Green’s complaint show that this was by no means a clear case of liability. Under such circumstances, the fact that Green’s medical expenses exceeded the settlement sum is not sufficient to support a finding that Allstate should have known of the lack of authority of Beskin to enter a compromise. See Hynko v. Hilton, 198 Ga. App. 308 (401 SE2d 324) (1991). The fact that Beskin settled the case quickly is likewise insufficient to support such a finding.

Consequently, under Brumbelow, Green is bound by her attorney’s settlement of the case. If he overstepped his authority, her remedy is against him. As in Wilson v. Anderson, 194 Ga. App. 167 (390 SE2d 86) (1990), Brumbelow entitled the defendant to summary judgment. See also Hynko, supra (holding that the defendant was entitled to a directed verdict under Brumbelow).

Judgment affirmed.

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

Robert S. Slocumb, for appellee.


author: Johnson, Judge.

text:
    A96A1582.
    MAO v. THE STATE.
    (474 SE2d 679)
   Johnson, Judge.

Saon Mao was convicted of aggravated assault and possession of a firearm during the commission of a felony. She appeals the denial of her motion to suppress her custodial statement. We affirm.

Although Mao was read her Miranda rights twice before giving the statement, she contends that a combination of linguistic, cultural, and emotional factors prevented her from making a knowing and intelligent waiver of those rights.

Mao was born in Cambodia in 1958. She fled from there to a refugee camp in Thailand, where she spent several years before emigrating to the United States approximately seven years before her trial. She spoke little English when she arrived, but took English classes and learned the language through everyday interactions with other people. Mao earned her GED and completed some nursing school before the incident that gave rise to this case.

In that incident, Mao shot her estranged boyfriend when he returned some gifts she had given him during the relationship. A police officer called to the scene of the shooting placed Mao in the back seat of his patrol car and read her Miranda rights to her. She said she understood her rights and was willing to talk to him, but he did not continue the conversation.

A detective arrived a short time later and again read Mao her Miranda rights, and again she said she understood and was willing to talk. He advised Mao that she was being charged with aggravated assault. She asked what the charge meant, and he explained that it meant she was accused of shooting the victim. The detective then tape-recorded her statement while they sat in the back seat of the patrol car. The statement was about four or five minutes in length, and was recorded approximately 25 to 40 minutes after the patrol officer first received the call about the shooting.

While in custody before trial, Mao was interviewed by Dr. Robert Storms and Dr. Theresa Sapp, forensic psychologists with the Georgia Mental Health Institute. Both later testified at the JacksonDenno hearing that they believed Mao had not actually understood her Miranda rights, even though she had given the patrol officer and the detective the impression that she understood them. Storms and Sapp based this opinion on several underlying factors:

They concluded that the cultures in which Mao had lived most of her life did not have a tradition of citizens’ rights to due process and against self-incrimination; and that Mao, while living under oppression in Cambodia and Thailand, had developed the “survival mechanism” of always indicating understanding and assent to people in authority. Storms and Sapp also found that though Mao’s comprehension of abstract concepts was very poor, Mao had continued her habit of expressing understanding and assent in order to minimize Americans’ frustration in trying to communicate with her. Another factor was that Mao had given her statement at a time of great emotional stress, which Storms and Sapp said would further reduce her ability to comprehend a language other than her native tongue. Their ultimate conclusion was that Mao’s waiver of her Miranda rights had not been knowing and intelligent.

When an appellate court reviews an order on a motion to suppress evidence, it must construe the evidence most favorably to upholding that order; the trial court should resolve conflicts in the evidence, and its credibility and factual findings should not be disturbed on appeal unless they are clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). When determining whether a waiver of Miranda rights and a subsequent statement were voluntarily and knowingly made, a court should consider the totality of the circumstances in light of the nine factors set out in Reinhardt v. State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993): (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of her right to consult an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with friends, relatives, or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods of interrogation used; (7) length of interrogation; (8) whether the accused had previously agreed to give statements; and (9) whether the accused has later repudiated an extrajudicial statement.

In the case before us, the trial court based its decision on evidence that conflicted with the opinions of Drs. Storms and Sapp: Mao’s ability to understand and respond appropriately to questions asked of her at the Jackson-Denno hearing; her appropriate responses to the detective’s questions in the statement sought to be suppressed; the fact that she was Mirandized not once, but twice; and a statement in an earlier report by Dr. Storms that Mao’s language skills were excellent, and not a barrier to communication. Moreover, both the patrol officer and the detective testified that Mao responded appropriately in their conversations with her, and seemed to have no problems understanding English. In these circumstances, the trial court’s decision that Mao waived her rights knowingly and intelligently was not clearly erroneous.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Decided August 13, 1996.

Colette B. Resnik, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.


text:
    A96A1086.
    THE STATE v. PETERS.
    (474 SE2d 623)
   Johnson, Judge.

Joseph D. Peters was charged with driving under the influence of alcohol when he failed field sobriety tests after having been stopped for speeding. The trial court granted Peters’ “Motion to Suppress and Motion In Limine,” excluding the test results on the ground that Officer Clayton had placed Peters under arrest but not informed him of his Miranda rights before administering the tests. The state appeals. We reverse.

“Factual and credibility determinations made by a trial judge after a suppression hearing or a motion in limine hearing to exclude evidence are accepted by appellate courts unless clearly erroneous.” (Citation and punctuation omitted.) State v. Leviner, 213 Ga. App. 99 (1) (443 SE2d 688) (1994). However, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

We accept as true the trial court’s findings that, before he administered the field sobriety tests, Officer Clayton had taken Peters’ driver’s license and stated that Peters was not free to leave. However, we do not accept the trial court’s reasoning that Miranda warnings were required because “a person is under arrest whenever his liberty to come and go as he pleases is restrained, no matter how slight such restraint may be.” A police officer may briefly detain a motorist and administer field sobriety tests that are not of a “testimonial or communicative nature” without advising the motorist of his or her rights against self-incrimination. Smith v. State, 202 Ga. App. 701, 702 (1) (415 SE2d 495) (1992). This is because “[treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.” Lankford v. State, 204 Ga. App. 405, 407 (2) (419 SE2d 498) (1992). The trial court erred in suppressing the test results.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

Decided July 9, 1996

Reconsideration denied August 14, 1996.

Ralph T. Bowden, Jr., Solicitor, Charles C. Flinn, Assistant Solicitor, for appellant.

Peters, Roberts, Borsuk & Taylor, R. Stephen Roberts, J. M. Raffauf, for appellee.


text:
    A96A1541.
    COLLINS v. TRANAKOS.
    (474 SE2d 622)
   Johnson, Judge.

Marcus E. Collins, Sr., Commissioner of the Georgia Department of Revenue, appeals from the trial court’s denial of his request for disbursement of funds, which had been paid into the registry of the court by Metropolitan Atlanta Olympic Games Authority (MAOGA) following the condemnation of property owned by Arthur R Tranakos. Collins claims the funds are subject to a fi. fa. in favor of the state for delinquent taxes. In denying the tax commissioner’s request for disbursement, the trial judge concluded: “The second assessment was not filed on the execution docket within seven years from the date that it became due.”

OCGA § 48-3-21 provides that all state tax executions shall be enforced within seven years from the date of issue or “[t]he time of the last entry upon the tax execution by the officer authorized to execute and return the execution if the execution and entry are properly entered or reentered upon the execution docket or books in which executions issued on judgments and entries on executions issued on judgments are required to be entered or reentered.” OCGA § 48-3-21 (2). The fi. fa. was originally issued on April 20, 1981 and, contrary to the date recited in the trial court’s order, recorded on May 14, 1981. It was rerecorded on January 20, 1988, and again on October 18, 1993. We see nothing in the record to support the trial court’s conclusion that this assessment was not filed on the execution docket within seven years from the date that it became due, and that it has lapsed or become dormant. The Supreme Court has held that public records are presumed to be correct and are not subject to collateral attack. Pope v. U. S. Fidelity &c. Co., 200 Ga. 69, 74 (1) (35 SE2d 899) (1945). The trial court’s denial of the tax commissioner’s motion for disbursement of funds was error.

Decided July 9, 1996

Reconsideration dismissed August 14, 1996.

Michael J. Bowers, Attorney General, Daniel M. Formby, Deputy Attorney General, ^Narren R. Calvert, Senior Assistant Attorney General, Sheri L. Smith, Assistant Attorney General, for appellant.

Arthur R Tranakos, pro se.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

       There were originally two fi. fas. The state concedes that one lapsed after seven years. This appeal only concerns the second fi. fa., ST-81-734B, in the principal amount of $7,132.60.


author: Judge Harold R. Banke.

text:
    A96A0848.
    PRATER v. THE STATE.
    (474 SE2d 684)
   Judge Harold R. Banke.

In 1972, Charles Baxter Prater pleaded guilty to two counts of theft by receiving stolen property and one count of theft by taking. In 1995, he filed a motion to correct clerical errors in the court’s records, seeking an order stating that the sentences he received in 1972 were imposed under the First Offender Act, OCGA § 42-8-60, and he had been discharged on each count without an adjudication of guilt. Nearly ten months after the court granted the ex parte motion, the State filed a “motion to set aside defendant’s motion to correct clerical errors in the court’s records.” After all the superior court judges in the circuit recused themselves, a judge from outside the circuit conducted a hearing and granted the State’s motion, nullifying the ex parte order. Prater appeals this order, enumerating four errors.

Prater’s status as a first offender became significant in 1994 after a federal magistrate issued a search warrant on Prater’s home authorizing the seizure of firearms illegally in his possession as a convicted felon. In petitioning for the return of the seized items, Prater argued that he was not a convicted felon.

Prater then filed the motion at issue in this case, seeking to correct purported “clerical errors” which he claimed were made over 22 years earlier. Specifically, the motion sought an order stating that each of his three 1972 felony sentences was entered under the First Offender Act. He supported the motion with an affidavit he obtained in 1994 from the sentencing judge, Robert Scoggins, who attested that Prater had received first offender treatment and was discharged without an adjudication of guilt.

Prater also attached copies of the 1972 sentences. Each sentence was on two forms. The first was styled “Felony Sentence.” It imposed a two year sentence, which could be served on probation upon payment of a fine at a specified monthly rate. The second form was entitled, “Sentence of Probation (Felony or Misdemeanor and First Offender).” Only one paragraph on this form specifically addressed the First Offender Act. It stated in pertinent part, “Whereupon, it is ordered and adjudged by the Court that the defendant serve _(years-months) upon probation. This sentence is imposed with defendant’s consent under the provisions of the Act for Probation of First-Offenders.” The time to be served on probation was left blank on Prater’s form. However, in separate paragraphs, this form reflected a sentence of two years confinement and ordered Prater to pay a fine at a specified monthly rate. Prater’s motion also included a copy of a 1974 order which “released and forever discharged [him] from said sentence and probation.”

Superior Court Judge Larry Salmon granted Prater’s ex parte motion several days after its filing. Judge Salmon was the district attorney in 1972 when Prater was sentenced, although he did not personally prosecute Prater.

Months after Judge Salmon entered this ex parte order, at the request of the United States Attorney, the State filed its motion to set aside defendant’s motion, arguing that it contested the facts presented to Judge Salmon. At the motion hearing, the sole witness, Judge Scoggins, testified that he signed the affidavit in haste without reading the entire file and had he known of the federal proceedings against Prater, he would not have signed the affidavit without investigating the matter further. Judge Scoggins also admitted that he lacked a distinct or independent memory of Prater’s pleas taken 22 years earlier. Nevertheless, Judge Scoggins reaffirmed his initial opinion that he had sentenced Prater as a first offender, despite his observation that nothing on the order terminating Prater’s probation reflected an adjudication under the First Offender Act. The State argued that Judge Salmon’s order was a nullity because he had been district attorney when the sentence was entered.

The trial court determined that (1) Judge Salmon’s order was a nullity and (2) the written record failed to show that Prater had been sentenced under the First Offender Act. The court then set aside the order and reinstated Prater’s 1972 sentences, specifying that they were outside the purview of the First Offender Act. Held'.

This State’s rules of criminal procedure require the service of every written motion on each party absent authority for an ex parte hearing. OCGA § 17-1-1 (a). No such authority is present in this case and the State was a proper party. See Ambles v. State, 259 Ga. 406 (1) (383 SE2d 555) (1989). Prater’s failure to comply with § 17-1-1 (a)’s mandate spawned the resulting procedural morass confronting us.

In civil cases, orders improperly rendered without notice or the opportunity to be heard are “nugatory” or a nullity. Stamm & Co. v. Boaz Spinning Co., 129 Ga. App. 779, 780 (2) (201 SE2d 480) (1973). In the instant context, the State’s interest in this proceeding is at least as great as that of parties to a civil action. See Ambles, 259 Ga. at 406-407. Accordingly, under the circumstances of this case, we find that Prater’s failure to comply with OCGA § 17-1-1 (a), thereby providing the State with notice and an opportunity to be heard on this matter, renders Judge Salmon’s ex parte order a nullity.

In light of this finding and notwithstanding Prater’s unsupported argument to the contrary, nothing prevented the trial court from reaching the merits of this matter. What Prater characterized as merely a “clerical error” was in truth a factual dispute as to whether Prater received first offender treatment over 22 years before. The State’s motion, despite its label, raised evidentiary questions which the trial court properly addressed. “ ‘[T]he law favors reaching the merits of disputes.’ [Cits.]” Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 263 (2) (450 SE2d 307) (1994).

In the evidentiary hearing, the State offered a guilty plea form indisputably entered under the First Offender Act a week prior to the entry of Prater’s pleas. The undisputed plea was entered on a form entitled “Sentence of Probation (Felony or Misdemeanor and First Offender),” the same pre-printed form used for Prater’s pleas. As noted, this form included a paragraph imposing first offender treatment which left a blank space where the defendant’s specific term of probation under the First Offender Act was to be entered. On Prater’s form the space remained blank. In contrast, on the undisputed example, this space was filled in with the specific term of probation the defendant was required to serve, evidence that the First Offenders provision on this form applied and that the same provision on Prater’s form was not activated. Moreover, in the undisputed example, this form was attached to another form styled “First Offender Sentence.” In contrast, the additional form used for Prater’s pleas was styled “Felony Sentence.” Further, the order discharging Prater from his sentence and probation failed to indicate that he was discharged “without adjudication of guilt,” a phrase which would have reflected his first offender status. In light of this evidence, the trial court’s factual determination that Prater’s pleas were not entered under the First Offender Act was not clearly erroneous. See State v. Wilson, 220 Ga. App. 538, 539 (469 SE2d 804) (1996). This evidence and the fact that Judge Scoggins had no independent recollection of Prater’s pleas precludes a finding of ambiguity in the sentence and the concomitant application of the rule of lenity. We reject Prater’s contention that the Civil Practice Act bars the State’s motion in this criminal proceeding. In light of the foregoing analysis, we need not reach Prater’s remaining enumerations.

Decided August 14, 1996

Garland, Samuel & Loeh, Edward T. M. Garland, for appellant.

Stephen F. Lanier, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.

       The State avers without evidentiary support that Prater was indicted in federal court on charges of being a convicted felon in possession of firearms.

       However, the federal proceedings are mentioned on the face of Judge Scoggins’ affidavit.

       We also note that Judge Salmon’s participation in this action was inappropriate under OCGA § 15-1-8 (a) (3) which prohibits judges from sitting in any case or proceeding in which they have been of counsel. King v. State, 246 Ga. 386, 389 (7) (271 SE2d 630) (1980); compare Wood v. Clarke, 188 Ga. 697, 698-699 (4 SE2d 659) (1939).


text:
    A96A1442.
    DEPARTMENT OF HUMAN RESOURCES v. GOULD.
    (474 SE2d 682)
   Birdsong, Presiding Judge.

The Georgia Department of Human Resources (DHR), on behalf of Teresa Lynn Brefka, appeals both the trial court’s modification of a preexisting child support order and the denial of DHR’s petition to hold appellee Richard L. Gould, Sr. in contempt for failing to comply with the trial court’s child support order. DHR enumerates three érrors. Held:

1. In its first and second enumerations of error, DHR contends the trial court erred both by modifying its previous child support orders in a contempt proceeding and by doing so retroactively. We agree and reverse the trial court’s rulings.

The October 2, 1992 divorce agreement between appellee Gould and Teresa Lynn Brefka ordered Gould to pay $55 per child per week for the support of his two children. Following this order, one of Gould and Brefka’s children decided to live with Gould. On April 28, 1995, Gould was found in wilful contempt for failure to pay child support. Acknowledging that one child was living with Gould, the trial court gave Gould credit for these time periods. The trial court held, however, that until the order was modified by the trial court and the trial court awarded custody of the child to Gould, Gould must continue to pay $55 per week for both children. With regard to arrearage payments, the trial court ordered Gould to pay a $2,000 lump sum by June 27, 1995, and payments of $20 per week until the remaining arrears were paid in full.

The present contempt action was filed by DHR on September 26, 1995, because Gould failed to pay the $2,000 lump sum and discontinued support payments of any kind, beginning October 27, 1995. The trial court ordered a modification of the divorce decree such that Gould is only responsible for the child still living with Brefka.

Georgia courts have repeatedly held that counterclaims for reduction of support cannot be held in a contempt proceeding; trial courts have no authority to modify the amount of child support of a final judgment and decree of divorce in a contempt proceeding. State v. Garrish, 197 Ga. App. 816, 817 (399 SE2d 572); see also Hancock v. Coley, 258 Ga. 291, 294 (4) (368 SE2d 735); Sells v. Eilender, 251 Ga. 463 (306 SE2d 662); Dept. of Human Resources v. Oakes, 201 Ga. App. 462 (411 SE2d 363). Were this not the case, “ ‘a husband could decline to pay alimony or child support so as to precipitate an application for contempt upon which a counterclaim for modification could be based. This would encourage nonpayment and deprivation of those entitled by the judgment to receive such payments.’ ” Garrish at 817, quoting McNeal v. McNeal, 233 Ga. 836, 838 (213 SE2d 845) (concurring opinion). Accordingly the trial court erred in entering a judgment which modified the original divorce decree by reducing Gould’s child support obligation.

The trial court also erred in modifying Gould’s child support obligation retroactively. A permanent child support judgment is res judicata and enforceable until modified, vacated or set aside. Allen v. Dept. of Human Resources, 264 Ga. 119 (441 SE2d 754); compare Lynn v. Nabors, 239 Ga. 493 (238 SE2d 45), citing Allen v. Withrow, 215 Ga. 388, 390 (110 SE2d 663). Until a final decree amending the child support is properly entered in the modification proceeding, the permanent judgment stands. Lynn, supra, citing Vickers v. Vickers, 220 Ga. 258 (138 SE2d 308). A child support judgment cannot be modified retroactively. Id., citing Butterworth v. Butterworth, 228 Ga. 277, 279 (3) (185 SE2d 59). See also Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279).

2. In its third enumeration of error, DHR contends the trial court erred by refusing to hold Gould in contempt of court for failure to pay child support. In view of our holding in Division 1, reversing the trial court’s order, we elect not to address DHR’s third enumeration. We do, however, note that a trial court’s discretion in determining whether to hold a party in contempt is broad and its decision will be upheld if there is any evidence to support it. Costa v. Costa, 249 Ga. 494, 495 (292 SE2d 73). Only if there is a gross abuse of the trial judge’s discretion will an appellate court disturb the trial court’s determination. Davis v. Davis, 250 Ga. 206, 207 (296 SE2d 722).

Decided August 14, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin O’Connor, Assistant Attorney General, Lisa Lott, for appellant.

Douglas R. Daum, for appellee.

Judgment reversed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A0761.
    WALKER v. THE STATE.
    (474 SE2d 695)
   McMurray, Presiding Judge.

Defendant Walker appeals his conviction of the offense of aggravated assault. The sole enumeration of error complains of the denial of a motion for new trial based on newly discovered evidence, the confession of another to the crime of which defendant was convicted. Held:

The granting of a new trial based on newly discovered evidence is not favored and six well established requirements must be satisfied before a new trial will be granted. “On motion for a new trial based on newly discovered evidence, it is incumbent that the movant satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence is accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Failure to show one requirement is sufficient to deny a motion for new trial. Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980); Offutt v. State, 238 Ga. 454, 455 (233 SE2d 191) (1977).” Humphrey v. State, 252 Ga. 525, 527 (3), 528 (314 SE2d 436). Since defendant has failed to satisfy at least two of these criteria, affirmance of the denial of defendant’s motion for new trial is required.

Defendant was indicted and tried along with co-defendant Hawkins. On the evening in question, these men became involved in a dispute concerning the right of way while cruising the parking area of a shopping center. This dispute with the victim of the aggravated assault and a companion was resolved only after police intervened. Several hours later and at a location in the same shopping center, the victim was suddenly approached and shot by two or three assailants. The victim testified that defendant Walker, whom he knew and had worked with, was one of the assailants.

Decided August 15, 1996.

Betty S. Frazer, for appellant.

Britt R. Priddy, District Attorney, Max G. Factor, Assistant District Attorney, for appellee.

The newly discovered evidence relied upon by defendant is a confession by the brother of co-defendant Hawkins, against whom other felony charges were pending, and who states that he was solely responsible for the assault on the victim. The confession is thus cumulative in that it addresses an issue upon which evidence was presented at trial, that is, the identity of the perpetrators. Further, the confession only serves to impeach the credibility of the witnesses at trial, particularly the testimony of the victim identifying his assailants. Van Scoik v. State, 142 Ga. App. 341 (235 SE2d 765).

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Ruffin, J., concurs in the judgment only.


text:
    A96A0833.
    ALLEN v. THE STATE.
    (474 SE2d 698)
   McMurray, Presiding Judge.

Defendant Allen appeals his conviction for the offenses of arson in the first degree and burglary. Held:

The State’s evidence shows that three young men invaded a remote rural residence, removed a number of items of personal property, and ignited a fire which seriously damaged the home. Two of the perpetrators testified at trial under grant of “use” immunity and identified defendant as the third participant in the crimes. All four of defendant’s enumerations of error are directed to the sufficiency of the evidence presented via the testimony of the admitted accomplices.

Defendant maintains that the sole evidence attempting to identify him as a participant in the crimes was the testimony of the two accomplices. The testimony of the accomplices should have been stricken contends defendant, who also argues that if the testimony of even one of the accomplices should have been stricken, the remaining evidence would not be sufficient to permit his conviction since under OCGA § 24-4-8 the uncorroborated testimony of an accomplice is insufficient to authorize a felony conviction.

Due to conflicts in the trial testimony of the two accomplices, as well as conflicts between their trial testimony and their earlier statements to law enforcement officers, defendant maintains that, rather than questions of impeachment and credibility for the jury, the present case involves knowing and wilful false swearing which must be disregarded in its entirety. See Fugitt v. State, 251 Ga. 451, 452 (1) (307 SE2d 471); Arnold v. State, 198 Ga. App. 514, 516 (2) (402 SE2d 312). Nonetheless, “it must be understood that the testimony which must be disregarded in its entirety is only that testimony which is wilfully and knowingly false.” Fugitt v. State, 251 Ga. 451, 452-453 (1), supra. Unlike Fugitt, we cannot say that every material part of the testimony of the State’s witnesses at issue is “purest falsification.” While the testimony of the accomplices as to their roles in the commission of the crime is in some respects irreconcilable, there is little significant dispute between the accomplices as to the nature of the overall criminal enterprise or defendant’s role in it. See Blalock v. State, 250 Ga. 441, 443 (4) (298 SE2d 477). For example, each accomplice denied entering the house and maintained that he remained outside listening to the radio scanner for any indication of an alert concerning their presence at the house but both agreed that defendant (along with the other accomplice) entered the house repeatedly in order to remove various items of personal property which were taken away by the three perpetrators. Nor does testimony by accomplice Deen that he had lied during his testimony at trial, indeed that most of his testimony had not been truthful, necessarily manifest an intent to give false testimony rather than simply a confused or unartful witness. In this case such statements during cross-examination were immediately followed on re-direct with assertions by this witness that he had not intended to give false testimony or to mislead the jury in any respect. Under these circumstances the credibility to be attributed to this witness’ testimony remained with the jury. Yebra v. State, 206 Ga. App. 12, 13 (1) (424 SE2d 318); Hayes v. State, 168 Ga. App. 710 (1) (309 SE2d 843).

Consequently, the trial court’s determination that the accomplices’ testimony included evidence relevant to issues upon which a credibility determination would need to be made by the jury was correct. There was no error in the denial of defendant’s motion to strike the testimony of the accomplices, motion for directed verdict, and motion for new trial. The evidence was sufficient to authorize a rational trier of fact to determine that defendant was guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson and Ruffin, JJ., concur.

Decided August 15, 1996.

Kirbo, McCalley & Forehand, Jon V. Forehand, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.