author: Sognier, Chief Judge. Cooper, Judge,

text:
    A92A0606.
    PARRIS v. THE STATE.
    (421 SE2d 137)
   Sognier, Chief Judge.

Arthur Lee Parris was convicted of possession of marijuana with intent to distribute, possession of cocaine, and five counts of possession of a firearm by a convicted felon. He appeals from the denial of his amended motion for a new trial.

1. Appellant contends the trial court erred by denying his motion to suppress. We do not agree. The record reveals that on January 13, 1990, a Savannah police detective obtained a search warrant for a house at 206 Russ Circle. In the supporting affidavit, the detective averred that on January 5 he had received information from a confidential informant that there had been excessive vehicular traffic going to that address, and that a dark green Pontiac Grand Prix, which was usually parked in the driveway, was being driven by “a Muslim looking fellow with [a] physically deformed forehead.” The detective stated that he was familiar with appellant; that appellant had “a physically distinctive forehead”; that he was familiar with a dark green Grand Prix driven by appellant; that appellant was not the registered owner but was frequently seen driving the car; and that appellant was listed as the person receiving electric power service at 206 Russ Circle. The affidavit further recited that on January 6, the detective had received both a “silent witness” complaint and a vice referral form regarding the premises in issue. The “silent witness” complaint, dated August 12, 1989, recited that on August 12, a Roy Kicklighter brought crack or cocaine from Miami to that address. The “silent witness” was not sure whether Kicklighter lived there or was just visiting. The vice referral form indicated that the house was the scene of prostitution and drug activity; that 14 males and females resided there; and that other people were observed entering the premises for an hour at a time.

The detective also averred that he had received an anonymous letter dated January 4, 1990, stating that the address in question was “a haven for prostitution and illegal drugs”; that crack and cocaine were delivered to the residence by cars with Florida and North Carolina plates and by Federal Express shipments; and that “girls were picked up and delivered hourly.” The detective stated that he had become familiar with the operation of prostitution rings in his two years on the vice squad, and this traffic pattern was consistent with a house of prostitution.

In addition, the affidavit contained the detective’s averment that on January 13, 1990, while listening to a scanner tuned to a low frequency, he overheard and recorded a conversation on a cordless telephone between a woman and a man identified as Mohammed. The conversation concerned the delivery of multiple kilos of cocaine that evening on the south side of Savannah. As the detective continued to monitor this scanner, the same man left a message for his call to be returned at a telephone number listed, to appellant at the address in question. Another police officer also identified the voice from the recording as appellant’s voice. The affidavit also related that on July 17, 1989, appellant was convicted of two counts of possession of cocaine.

The search warrant for the residence was issued after the judge considered the detective’s affidavit and a transcript of the phone conversation. Officers staked out the house in anticipation of the woman in the telephone conversation arriving with cocaine and continued to monitor the scanner. When the woman did not arrive by January 15, the officers executed the warrant. They discovered appellant sitting in the living room in a bathrobe. The room had the odor of burning marijuana. In appellant’s pocket was an automatic pistol loaded with six rounds, a small bag of marijuana, and $510 in cash. Elsewhere in the house were two women and two young children. Appellant told the officers there were more guns in the closet, and when they searched the locked master bedroom closet, they found a suitcase containing six one-quart ziplock bags of suspected marijuana, a glass beaker, a scale, and a box of ziplock bags. Also in the closet were a hot plate with cocaine residue on top, syringes, $2,000 in cash, and four handguns. A small set of scales, rolling papers, two small plastic bags containing cocaine residue, and a jar of a powder commonly used to cut cocaine were discovered in another bedroom. In the living room, police found more rolling papers and ziplock bags and a cordless telephone.

Pretermitting the issue whether the detective’s use of a scanner to overhear the conversation on the cordless telephone was prohibited under Georgia law, the trial court properly denied appellant’s motion to suppress the evidence.

The affidavit may or may not have been sufficient to support issuance of a warrant under the “totality of the circumstances” standard of Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). However, even assuming it was not sufficient, under United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984) the exclusionary rule has been “ ‘modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’ ” Id. at 905 (I). In our effort not to punish police for a magistrate’s erroneous issuance of a warrant, in determining whether evidence obtained as a result of executing the warrant must be suppressed we look to the question of whether the officer relied in good faith upon the issuance of the warrant. See Adams v. State, 191 Ga. App. 916 (383 SE2d 378) (1989). “ ‘[A] warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search.’ [Cit.]” Leon, supra at 922. “In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id. at 926. See Adams, supra at 917.

The record in the case at bar reveals no allegations of dishonesty or recklessness on the part of the officer or lack of neutrality on the part of the magistrate. Accordingly, we focus on whether the officer could have harbored an objectively reasonable belief in the existence of probable cause to search appellant’s residence. See Davis v. State, 198 Ga. App. 310, 311 (401 SE2d 326) (1991). Our examination of the officer’s affidavit reveals that it was not “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,’ [cit.]” Leon, supra at 923, which is required to warrant suppression. See Talley v. State, 200 Ga. App. 442, 445 (3) (408 SE2d 463) (1991). Defects such as those focused on by the dissent do not preclude the existence of objective good faith on the part of the police in relying on the validity of the warrant. Id. Based on the totality of the circumstances here, including the many independent sources from which the officer drew his suspicions regarding appellant’s illegal activity, we conclude that the officer “acted in objective good faith, within the meaning of Leon, in both obtaining and executing the search warrant and that any deficiency in the warrant or its affidavit would not result in the invocation of the exclusionary rule.” Talley, supra.

Accordingly, we affirm the trial court’s denial of the motion to suppress.

2. Appellant’s contention that the record does not contain an order either granting or denying his motion to suppress has been addressed by the transmission of a supplement to the record containing the trial court’s order denying his motion.

3. Appellant contends the evidence at trial was insufficient to support his conviction on the charged offenses. We do not agree. “It is true that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Citations and punctuation omitted.) Hunt v. State, 196 Ga. App. 694 (2) (396 SE2d 802) (1990). However, the evidence adduced at trial showed that appellant owned the house and slept in the bedroom containing the locked closet in which the contraband was found. He claimed ownership of the guns and money found in that same closet. Although he testified he had merely discovered contraband left there by another, he failed to report the “discovery” to the police, and admitted he had taken a “pinch” of marijuana himself. Thus, the totality of the evidence was sufficient to connect appellant to the contraband and, when viewed in a light favorable to the verdict, as an appellate court is required to do, was sufficient to authorize any rational trier of fact to find appellant guilty of the crimes charged under, the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Hunt, supra at 694-695. Accord Barkley v. State, 198 Ga. App. 477-478 (402 SE2d 88) (1991).

Judgment affirmed.

Birdsong, P. J., Carley, P. J., Pope, Beasley, Andrews and Johnson, JJ., concur. McMurray, P. J., and Cooper, J., dissent.

Cooper, Judge,

dissenting.

I must respectfully dissent as I cannot agree with the majority that the officer’s affidavit demonstrated probable cause to support issuance of the search warrant. The issuing judge should not have considered the unlawfully obtained private telephone conversations. The officer’s use of the scanner to intercept appellant’s private cordless telephone conversations required a properly issued warrant pursuant to OCGA § 16-11-64 (b), and his recording of the conversations violated OCGA § 16-11-62. Review of the affidavit, excluding the unlawfully obtained cordless telephone conversations, reveals no probable cause.

The affidavit first represents that a confidential informant reported to the detective eight days prior to the execution of the warrant that “there has been a lot of vehicular traffic to 206 Russ Circle.” The informant also stated that a “Muslim looking fellow” with a deformed forehead drove a green Grand Prix which was always parked in the driveway of the residence. However, there are no facts alleged in the affidavit to demonstrate the informant’s reliability and no allegation of criminal activity. See State v. Smith, 201 Ga. App. 650 (411 SE2d 877) (1991). Furthermore, the evidence, without more, is not relevant to any offense with .which appellant was charged. Next, the detective discussed a silent witness complaint and a vice referral form he received on January 6, seven days before the execution of the warrant. The silent witness alleged that another individual brought crack or cocaine into the residence on August 12, 1989, five months before the execution of the warrant and two-and-one-half months before appellant moved into the house. The vice referral form reported prostitution and drug activity on October 2, 1989, three months before the issuance of the warrant. These observations were not “ ‘so near in point of time to the making of the affidavit and the execution of the search warrant as to create a reasonable belief that the same conditions described in the affidavit still prevailed at the time of the issuance of the warrant.’ [Cit.]” Jackson v. State, 130 Ga. App. 6 (3) (202 SE2d 206) (1973). Moreover, the information provided in the anonymous letter regarding drug deliveries and prostitution was not corroborated by the detective nor did it point to any particular place where cocaine might be found in the house. State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). These are not merely technical defects. Probable cause must be demonstrated by more than an officer’s suspicions based on stale information and uncorroborated allegations. Furthermore, I cannot so easily excuse the officer’s unlawful interception of appellant’s private telephone conversations. The officer cannot be said to have acted in good faith in executing the search warrant when he violated the law in obtaining the warrant authorizing such search. Thus, the issuing judge did not have a substantial basis for concluding that probable cause existed, and appellant’s motion to suppress should have been granted.

Decided July 16, 1992.

William A. Dowell, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1291.
    GRAY v. HIGGINS.
    (421 SE2d 341)
   Birdsong, Presiding Judge.

This is an appeal from the order of the superior court granting summary judgment in favor of appellee Anne M. Higgins and denying summary judgment for appellant administratrix.

In October of 1963, pursuant to a settlement agreement made part of a final divorce decree entered in 1964, deceased husband, William E. Gray, agreed to assign and to make his spouse, Anne M. Higgins then Anne M. Gray, the owner of a certain $25,000 whole life insurance policy, and to keep the policy current and in effect. Following the death of the deceased in October, 1989, appellee was informed the policy had been allowed to lapse in 1967, and that neither this policy nor any other $25,000 policy was then in force which named her beneficiary. In May, 1991, appellee brought suit against her former husband’s estate seeking $25,000 in damages. Held:

1. Appellee is a real party in interest within the meaning of OCGA § 9-2-20 (a). See Insured Lloyds v. Bobo, 116 Ga. App. 89, 90 (156 SE2d 518); Tyler v. Nat. Life &c. Ins. Co., 48 Ga. App. 338 (2) (172 SE 747) (generally an action on an insurance policy or written binder must be brought in the name of the legal titleholder, and one other than the person to whom the policy was issued cannot maintain an action thereon in his own name, unless the policy has been duly assigned to him in writing).

2. The settlement agreement, which was incorporated into the divorce decree, pertinently provides as follows: “[William E. Gray] agrees to assign irrevocably to [appellee] before this divorce becomes final, insurance policy No. 707344 ... in the sum of $25,000. [Appellee] shall be sole owner of said policy, but agrees to maintain the children as beneficiaries during their minority. (First party agrees to maintain an additional policy on his life of not less than $25,000 so long as any of the children are minors. First party further agrees to maintain the second party as primary beneficiary on said policy. When the youngest of the children has reached her majority, first party shall have the right to change the beneficiary on said policy as he sees fit.) [William E. Gray] further agrees to pay all premiums on both policies and to see that they are kept current and in force.” (Provisions in parentheses pertain to a second policy not here at issue.)

The portion of the settlement agreement creating an obligation to pay insurance premiums constitutes periodic alimony rather than equitable property division. Sapp v. Sapp, 259 Ga. 238, 240 (4) (378 SE2d 674). Absent a “manifest intention of the parties” to the contrary, the obligation to pay periodic alimony terminates on the death of the paying spouse (Dolvin v. Dolvin, 248 Ga. 439, 441 (284 SE2d 254)) or of the surviving spouse (Ramsay v. Sims, 209 Ga. 228, 233-234 (71 SE2d 639), reversed on other grounds, Dolvin v. Dolvin, supra). Compare Winokur v. Winokur, 258 Ga. App. 88 (365 SE2d 94); Rooks v. Rooks, 252 Ga. 11, 15 (311 SE2d 169) (Weltner, J., concurring). This rule applies “to separation agreements as well as decrees of divorce.” Schartle v. Trust Co. Bank, 239 Ga. 248, 249 (236 SE2d 602). Additionally, as of the effective date of OCGA § 19-6-5 (b) (Code Ann. § 30-209), periodic alimony also terminates upon the remarriage of the receiving spouse. Appellant has not contested the trial court’s holding, pursuant to Candler v. Wilkerson, 223 Ga. 520, 521 (156 SE2d 358), that OCGA § 19-6-5 (b), providing for automatic termination of alimony upon remarriage, could not be applied retroactively to this settlement agreement.

(a) A settlement agreement is a contract and the question of its enforceability is for the court to decide. Graves v. State, 260 Ga. 779 (399 SE2d 922). Where a settlement agreement is incorporated into a final decree of divorce, a suit seeking damages for the violation of its terms need not be initiated solely upon the decree; but an action ex contractu may be maintained due to a breach of the settlement agreement. OCGA § 9-2-4; see also Russell v. Fulton Nat. Bank, 247 Ga. 556 (276 SE2d 641), overruled on other grounds, Dolvin v. Dolvin, supra; Brooks v. Jones, 227 Ga. 566, 569 (1) (181 SE2d 861); Ramsay v. Sims, supra. Accordingly, the trial court did not err in finding the settlement agreement constituted a valid and enforceable contractual obligation that was incorporated into the final divorce decree.

(b) “Where the parties in a divorce action enter into a settlement agreement, its meaning and effect should be determined according to the usual rules for the construction of contracts, the cardinal rule being to ascertain the intention of the parties. [Cit.] In approving and adopting a settlement agreement, the court adopts the meaning and effect of the agreement as it was intended by the parties.” Cousins v. Cousins, 253 Ga. 30, 31 (1) (315 SE2d 420); Anderson v. Larkin, 190 Ga. App. 283, 284 (378 SE2d 707).

The pertinent terms of this settlement agreement are clear and unambiguous; accordingly, we will look to the settlement contract alone to find the intention of the parties. Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). Examining the language of the settlement agreement, we find the parties intended that upon the death of William E. Gray the deceased would have kept current and in force a $25,000 insurance policy assigned to and then owned by appellee, and that the requirements for deceased to pay premiums on the policy and to see that it was kept “current and in force,” were to be a non-severable part of this agreement. Additionally, the parties intended that the children, during their minority, would be the beneficiaries of this policy (the children have reached the age of majority in this case). Equally clear in this agreement is the parties’ inherent intent that after the children had reached the age of majority (which they reached prior to the death of William E. Gray), appellee, being declared the “sole owner” of the policy, would be vested with the sole authority to change the policy beneficiaries and to declare whomever she desired (including herself) to be the beneficiary thereof.

Further, considering the purpose of the settlement agreement and the terms of the document in its totality, we find that the portions of the settlement agreement provisions referring to a specific policy number were incidental to the true contractual intent of the parties and merely served to identify the particular $25,000 policy then in force; but that the true and paramount intent of the parties, at the time the settlement contract was executed and again when it was incorporated into the divorce decree, was that upon the death of William E. Gray some type of $25,000 insurance policy would be current and in force and that ownership of this policy would have been transferred to the appellee. Accordingly, payment of $25,000 on the death of the deceased was not intended to be “restricted” to the specific policy referred to in the agreement. In fact, the maintenance of a current and in force insurance policy was merely the “financial vehicle” chosen by the parties to provide $25,000 on the death of deceased. “The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” (Emphasis supplied.) OCGA § 13-2-3.

Moreover, assuming arguendo, William E. Gray had intended that his obligation to provide a current and in force policy of insurance for appellee at the time of his death (by means of making periodic alimony payments in the form of insurance premiums) would extend only to a particular policy of insurance, it is clear from the terms of the settlement agreement in its totality that appellee unequivocally intended that, upon Gray’s death, she would be the owner of a current and then in force $25,000 policy of insurance, regardless of its particular policy number, and that her intent to this effect was known to William E. Gray both at the time the settlement agreement was executed and when it was incorporated into the divorce decree. In this regard, OCGA § 13-2-4 provides: “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” Thus, also under this statutory rule, the true meaning of the questioned provision of the settlement agreement is that upon William E. Gray’s death there would be current and in force a $25,000 insurance policy of which appellee had previously been invested with ownership.

(c) Consistent with the parties’ true intent, appellee would not be limited in recovering as damages only that amount of money that should have been paid as policy premiums. Rather, appellee could seek to recover the policy amount of $25,000, as “[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. When this particular settlement agreement was entered and thereafter when it was incorporated into the decree, the parties contemplated, within the meaning of OCGA § 13-6-2, that a breach of settlement contract allowing the policy to lapse and not to be reinstated in any form prior to death of decedent would result in damages in the policy amount ($25,000), and such damages would arise naturally and according to the usual course of things from such a breach.

3. Although Larson v. Larson, 226 Ga. 209 (173 SE2d 700) is distinguishable, the trial court correctly concluded that the breach caused by failure to have a $25,000 policy of insurance current and in force, pursuant to the contractual terms of the settlement agreement incorporated by reference into an unmodified divorce decree, occurred at the time of decedent’s death. The legal duties created by the questioned terms of the settlement agreement, as intended by the parties and above discussed, were entire within the meaning of OCGA § 13-1-8 (a). The parties’ intent is beyond cavil, and “[t]he character of the contract in such case is determined by the intention of the parties.” OCGA § 13-1-8 (b). Although the terms in question required periodic alimony payments during the lifetime of Mr. Gray, the vital obligation imposed thereunder was to keep current and in force a $25,000 insurance policy upon his death. Parties can intend and execute a settlement contract to provide for current and in force insurance upon the obligated party’s death that is entire in character, notwithstanding a requirement therein for periodic alimony in the form of policy premium payments. Cf. Branch, Sons & Co. v. Palmer, 65 Ga. 210, 215 (3) (83 SE 668) (contract was entire although it contained a stipulation therein for delivery by installments; the contract, as a whole, is one). “ ‘In determining whether the contract is entire or severable, the criterion is to be found in the question whether the whole quantity, service or thing — all as a whole—is of the essence of the contract. If it appear [s as in this case] that the contract was to take the whole or none, then the contract would be entire.’ ” Burns v. Mitchell, 55 Ga. App. 862 (1) (191 SE 870).

Where the matters specified in the claim are the outgrowth of an entire settlement agreement provision, whose vital purpose is to provide a current and in force policy of insurance at the time of death of the obligated spouse albeit policy premiums were to be paid through timely payments constituting in law the payment of periodic alimony, then as against such a cause of action for breach of contract for failure to provide such a policy and praying for damages as a result thereof, the applicable statute of limitation begins to run upon and only upon the date of the obligated spouse’s death. Cf. Burns v. Mitchell, supra. Although “ ‘[i]t is a general and established principle of law that the statute of limitation begins to run from the time the right of action accrues’ ” (Rosenstock v. Congregation &c. Achim, 118 Ga. App. 443, 444 (164 SE2d 283)), in the case at bar, the right of action for which suit was initiated accrued on the date of the obligated spouse’s death. As suit was initiated within two years of William E. Gray’s death there has been no running of the statute of limitation. See generally OCGA Title 9, Ch. 3, Art. 2.

Additionally, the record before us does not affirmatively establish when appellee first became aware or should have been aware of the lapse of the specific policy incidentally referred to in the settlement agreement. Moreover, we cannot reasonably infer from the state of the record that appellee knew or should have known of the lapse at some specific point in time before receiving notice thereof following the deceased’s death. In any event, the breach giving rise to the running of the statute of limitation did not occur until deceased’s death for the reasons above discussed.

Decided July 16, 1992.

Glaze, Glaze, Fincher & Brakefield, Gary H. Brakefield, William A. Grabbe, for appellant.

Samuel W. Wethern, for appellee.

4. Further, “appellee’s claim is not barred by the doctrine of laches. ‘The equitable doctrine of laches is not applicable to suits at law . . . (E)ven if the doctrine of laches could be invoked in a suit at law, it could not be invoked during the period during which a statute of limitation would be applicable.’ ” Virgil v. Kapplin, 187 Ga. App. 206, 208 (4) (369 SE2d 808). The case at bar is a suit at law and, additionally, suit was initiated in this case before the expiration of any applicable statute of limitation.

Appellant’s other assertions in support of its enumeration of error are equally without merit.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge. Cooper, Judge,

text:
    A92A0547, A92A0548.
    A92A0549.
    JEFFERSON-PILOT COMMUNICATIONS COMPANY v. PHOENIX CITY BROADCASTING, LTD. OF ATLANTA et al.; and vice versa. HOLLIS v. JEFFERSON-PILOT COMMUNICATIONS COMPANY.
    (421 SE2d 295)
   McMurray, Presiding Judge.

These appeals are taken from the verdict and judgment in a multi-faceted litigation arising from a contract for the purchase and sale of a radio station. In 1980, Michael R. Hollis learned that the Federal Communications Commission (“FCC”) was accepting applications for a permit to build and operate a 50,000-watt radio station in the Atlanta area. Hollis formed a corporation, Phoenix City Broadcasting Company of Atlanta, Inc., which in turn formed a limited partnership, Phoenix City Broadcasting, Ltd. of Atlanta. The permit to build the radio station was granted to this partnership in 1985.

Soon after the grant of the construction permit, the partnership entered into negotiations for the sale of the radio station to Jefferson-Pilot Communications Company (“Jefferson-Pilot”). On April 9, 1987, Jefferson-Pilot and the partnership entered into an “Asset Purchase Agreement” concerning the sale and purchase of the radio station. This agreement reflected the restrictive effect of regulations of the Federal Communications Commission which prohibited the owner of a broadcast property from deriving a profit on the sale of an unbuilt station. The Asset Purchase Agreement provided that the partnership would have the transmitter facility constructed according to plans and specifications approved by Jefferson Pilot, and contemplated a transfer of the broadcast license after the station was completed and the partnership received program test authority. Upon satisfaction of a number of conditions precedent, including FCC approval of an assignment of the partnership’s authorization for the station, Jefferson-Pilot was to purchase the radio station. The purchase price Jefferson-Pilot agreed to pay included reimbursement of pre-approved costs of construction, $1,500,000 cash and $500,000 worth of advertising time to the partnership. Although not a part of the purchase price for the assets, the agreement provided that on the closing date Jefferson-Pilot and Hollis would enter into a non-compete and consulting agreement under which Hollis would be paid $1,000,000 in cash over four years.

The partnership obtained financing for the construction of the station through H. J. Russell and Company, which later brought in The First National Bank of Atlanta (“First Atlanta”) as a participating lender. H. J. Russell and Company assigned its rights under the loan documents to First Atlanta. The partnership, Jefferson-Pilot, H. J. Russell and Company, and First Atlanta executed an “Acknowledgement, Consent and Estoppel” in which the partnership and Jefferson-Pilot agreed to notify First Atlanta of any collateral default under the Asset Purchase Agreement, and agreed that under such circumstances First Atlanta could exercisé any of the rights of the partnership under the Asset Purchase Agreement.

The partnership and Hollis employed Paul L. Whitney to oversee certain aspects of construction of the radio station. On July 31, 1987, Jefferson-Pilot paid $15,818 to Whitney, who was close to leaving the project due to non-payment.

During the course of construction of the radio station a disagreement developed between Jefferson-Pilot and the partnership concerning which party was to be responsible for certain of the construction costs. Jefferson:Pilot offered a lower purchase price than that stated in the Asset Purchase Agreement as a settlement of the issue and on May 20, 1988, sent a letter to H. J. Russell and Company and First Atlanta describing the friction between the parties.

On April 7, 1988, the new radio station began broadcasting and on April 18, 1988, a joint application for transfer of ownership was filed with the FCC. Nonetheless, the disagreement as to construction costs had not been resolved and the potential audience of the new station had declined, when on July 7, 1988, Jefferson-Pilot notified the partnership that it was terminating the Asset Purchase Agreement.

The partnership succeeded in subsequently selling the radio station to another buyer at a lower price. Meanwhile, this litigation began when Jefferson-Pilot filed a breach of contract action in the State Court of Fulton County seeking return of $150,000 in earnest money advances. Jefferson-Pilot named the partnership and Phoenix City Broadcasting Company of Atlanta, Inc. as defendants. The partnership filed a counterclaim for breach of contract and tortious interference with contractual relationships, and Hollis filed an action against Jefferson-Pilot for tortious interference and breach of contract. These actions were consolidated and transferred to the superior court for trial.

The breach of contract claims raised by the partnership and Hollis were predicated on the termination of the Asset Purchase Agreement, while the tortious interference claims were predicated on the payment to Whitney and on the May 20, 1988, letter from Jefferson-Pilot to H. J. Russell and Company and First Atlanta.

On the trial of the case, the jury returned a verdict in favor of Jefferson-Pilot on its breach of contract claim to recover the $150,000 earnest money from the partnership and Phoenix City Broadcasting Company of Atlanta, Inc., and on the partnership’s counterclaim for breach of contract. On the tortious interference of contract claims against Jefferson-Pilot, the jury returned a verdict in favor of Hollis, awarding no damages, and in favor of the partnership, awarding damages in the amount of $1,150,000.

Three appeals are taken from the judgment entered on this verdict. In Case No. A92A0547, Jefferson-Pilot enumerates as error the denial of its motions for judgment notwithstanding the verdict and motion for directed verdict against the partnership on the issue of tortious interference with a contract. In Case No. A92A0548, the partnership and Phoenix City Broadcasting Company of Atlanta, Inc. appeal the denial of their motion for judgment notwithstanding the verdict and motion for directed verdict in regard to Jefferson-Pilot’s breach of contract claim, and in regard to the partnership’s breach of contract claim against Jefferson-Pilot, as well as the trial court’s failure to appropriately consider the partnership’s motion for the trial court to determine the award of damages, or, in the alternative to order a new trial as to damages only on its tortious interference claim against Jefferson-Pilot. Hollis appeals in Case No. A92A0549, enumerating as error the trial court’s refusal to grant his motion for judgment notwithstanding the verdict on his breach of contract claim against Jefferson-Pilot, refusal to give a requested charge to the jury, grant of Jefferson-Pilot’s motion for judgment notwithstanding the verdict on his tortious interference claim, and denial of Hollis’ motion for the trial court to determine damages or, in the alternative, for the order of a new trial. Held:

1. In Case No. A92A0547, Jefferson-Pilot relies upon the proposition that a claim for tortious interference with contractual relations is viable only when the interference is done by one who is a stranger to the contract. Piedmont Cotton Mills v. H. W. Ivey Constr. Co., 109 Ga. App. 876, 879 (137 SE2d 528). See also Jet Air v. Nat. Union Fire Ins. Co., 189 Ga. App. 399 (375 SE2d 873) and Sheppard v. Post, 142 Ga. App. 646, 647 (1) (236 SE2d 680). While Hollis and the partnership contend that Jefferson-Pilot was a stranger to the contracts between the partnership and its lenders, and to the contract between Whitney and the partnership, the record shows otherwise.

The documents show that Jefferson-Pilot was an essential party to the contract between the partnership and its lenders, H. J. Russell and Company and First Atlanta. The original financing agreement between the partnership and H. J. Russell and Company was executed the same day as the Asset Purchase Agreement. The Asset Purchase Agreement required Jefferson-Pilot to give H. J. Russell and Company notice of any breach of that agreement so that it might have the opportunity to cure the breach. Later, when H. J. Russell and Company’s rights under the loan agreement were assigned to First Atlanta, Jefferson-Pilot, the partnership, H. J. Russell and Company, and First Atlanta entered into the Acknowledgment, Consent, and Estoppel wherein Jefferson-Pilot acknowledged the assignment of the Asset Purchase Agreement to H. J. Russell and Company and thence to First Atlanta, promised to give First Atlanta prompt written notice of the occurrence of any default under the Asset Purchase Agreement, and agreed that in the event of default under the Asset Purchase, First Atlanta would have the rights possessed by the partnership under the Asset Purchase Agreement. Jefferson-Pilot was required to restate and reaffirm all of its obligations under the Asset Purchase Agreement. While it is true that Jefferson-Pilot did not acquire any obligation in regard to repayment of the loans, there were other rights and duties flowing between each of the parties. We cannot agree that Jefferson-Pilot was a stranger to the partnership’s contractual relationship with the lenders. Rather, the buyer, seller, and lenders were all parties to a comprehensive interwoven set of contracts which provided for the financing, construction, and transfer of ownership of the radio station. Therefore, Jefferson-Pilot could not have tortiously interfered with that contractual relationship between the partnership and its lenders. Piedmont Cotton Mills v. H. W. Ivey Constr. Co., 109 Ga. App. 876, 879, supra; Jet Air v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403 (4), supra; Sheppard v. Post, 142 Ga. App. 646, 647 (1), supra.

A similar analysis is applicable to the relationship between the partnership and Whitney, the engineer employed to supervise the construction of the radio station. Although Whitney was employed by the partnership, the final payment to Whitney from the partnership was conditioned on approval of the quality and quantity of his work by Jefferson-Pilot. Since Whitney’s ultimate responsibility was to see that the radio station was constructed to the satisfaction of the ultimate user, Jefferson-Pilot, it is clearly intended that Jefferson-Pilot benefit from the contract of employment between the partnership and Whitney. As a third party beneficiary of the contract between the partnership and Whitney, Jefferson-Pilot cannot be liable for tortious interference with that contract. Cohen v. Wm. Goldberg & Co., 202 Ga. App. 172, 177 (3), 178 (413 SE2d 759).

It follows that the trial court erred in denying Jefferson-Pilot’s motions for directed verdict and judgment notwithstanding the verdict against the partnership on the issue of tortious interference with a contract between the partnership and its lenders, H. J. Russell and Company and First Atlanta, and on the issue of tortious interference with a contract between the partnership and Whitney. In this connection, we must also note that the dissent’s reliance upon Cohen v. Wm. Goldberg & Co., 202 Ga. App. 172, 177 (3), supra, is misplaced. While Cohen does hold that a person who has not signed a written contract is not a party to that contract, it clearly does not suggest that a non-party is necessarily a stranger to the contract. Indeed, that case holds that Joe Cohen is a non-party but not a stranger to a certain contract, and as such could not be subject to a tortious interference claim.

We also note a second reason that the trial court should have granted Jefferson-Pilot’s motions for directed verdict and judgment notwithstanding the verdict directed to the merits of the tortious interference claims. There is no evidence that the action of Jefferson-Pilot, in sending the letter of May 20, 1988, or in making the payment to Whitney, was the proximate cause of any harm to the partnership. See Perry & Co. v. New South Ins. Brokers of Ga., 182 Ga. App. 84, 89 (354 SE2d 852). The undisputed evidence is that neither H. J. Russell and Company nor First Atlanta took any action as a result of the May 20, 1988, letter. Both of these lenders did foreclose subsequently, after Jefferson-Pilot terminated the Asset Purchase Agreement and the partnership failed to pay the loan when it became due, but there is no evidence associating these events with the letter. Similarly, there is no evidence of any harm to the partnership due to the payment to Whitney. Whitney testified that he was not being timely paid by the partnership, was close to leaving the job when he received the payment from Jefferson-Pilot, and that his decision to remain on the job was affected by the payment from Jefferson-Pilot. There is no evidence that the payment by Jefferson-Pilot retarded performance of the employment contract or made it more difficult or expensive. While issues of proximate cause are generally for a jury, this issue may be decided as a matter of law in plain and undisputed cases. Williams v. Norred, 200 Ga. App. 528, 529 (408 SE2d 827).

The trial court erred in denying Jefferson-Pilot’s motions for directed verdict and judgment notwithstanding the verdict on the partnership’s claims of tortious interference with contracts. The judgment in Case No. A92A0547 must be reversed. This holding also resolves the issues raised by the third enumeration of error in Case No. A92A0548, and by enumerations of error three and four in Case No. A92A0549.

2. The remaining two enumerations of error in Case No. A92A0548 address the denial of the partnership’s motions for directed verdict and judgment notwithstanding the verdict on the opposing breach of contract claims between Jefferson-Pilot and the partnership. The Asset Purchase Agreement provided that: “Either Buyer or Seller may terminate this agreement on or After May 1, 1988 without liability to either party ... if the conditions precedent set forth in Article 8 have not been satisfied (or, as to Articles 8.6 and 8.8, are not able to be satisfied) by May 1, 1988.” There was evidence that none of the nine condition precedents set out in Article 8 had been met by the partnership before May 1, 1988. While there may be conflicting evidence concerning the completion of the condition precedents and some evidence of mutual departure from the terms of the contract, conduct on the part of Jefferson-Pilot amounting to estoppel, or implicit waiver of the May 1, 1988 deadline, the resolution of the factual issues thus presented is for the jury. Rowe v. Ben’s Truck Stop, 197 Ga. App. 514 (398 SE2d 760); Wenzcel Tile Co. of Fla. v. Newman, 194 Ga. App. 776 (1) (391 SE2d 652). This holding also resolves the issues raised in the first enumeration of error of Case No. A92A0549, and renders moot the issues raised in the second enumeration of error in that case.

Judgment reversed in Case No. A92A0547, and affirmed in Case Nos. A92A0548 and A92A0549.

Birdsong, P. J., Carley, P. J., Pope, Andrews and Johnson, JJ., concur. Beasley and Cooper, JJ., dissent. Sognier, C. J., not participating.

Cooper, Judge,

dissenting.

The law in Georgia is that “[t]ortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. [Cits.]” Jet Air v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403 (4) (375 SE2d 873) (1988). The majority finds that Jefferson-Pilot was not a stranger to either the contractual relationship between Phoenix City and its lender, H. J. Russell and Company, or the contractual relationship between Phoenix City and its contractor, Whitney. Thus, the majority concludes that as a matter of law, Jefferson-Pilot could not be liable for tortious interference with contract. I dissent because I am of the opinion that Jefferson-Pilot was a stranger to both contractual relationships and could be liable for tortious interference with contract.

With respect to the loan agreement between Phoenix City and H. J. Russell and Company, the majority concludes that Jefferson-Pilot was an “essential party” to that contract. That conclusion is apparently based on the fact that the loan agreement was executed on the same day as the Asset Purchasing Agreement and because the subsequent document labelled “Acknowledgment, Consent and Estoppel,” executed by Jefferson-Pilot, Phoenix City, H. J. Russell and Company and First Atlanta, required Phoenix City and Jefferson-Pilot to notify the lender of any default under the Asset Purchase Agreement. Thus, the majority reasons that even though Jefferson-Pilot did not sign the loan agreement and did not otherwise acquire any obligation to repay the loan, Jefferson-Pilot, Phoenix City and the lender “were all parties to a comprehensive interwoven set of contracts which provided for the financing, construction, and transfer of ownership of the radio station.” I do not agree that by executing several separate and distinct agreements, Jefferson-Pilot somehow became a party to an agreement, unsigned by it, regardless of how related those agreements may have been. In Cohen v. Wm. Goldberg & Co., 202 Ga. App. 172 (3) (413 SE2d 759) (1991), this court, in considering a tortious interference claim, rejected the argument that a person who did not sign a contract could somehow become a party to that contract. See Cohen, supra at 177. Also, in Sunamerica Financial v. 260 Peachtree St., 202 Ga. App. 790 (415 SE2d 677) (1992), this court noted that a parent company could under some factual scenarios be a stranger to a contract entered into between one of its wholly owned subsidiaries and a third party. I am unable to concur in the majority’s conclusion which focuses on the relationship between Jefferson-Pilot and Phoenix City and the relationship between the various contracts executed rather than the specific contract which is the subject matter of the tortious interference.

I also disagree with the majority’s conclusion that Jefferson-Pilot cannot be liable for tortious interference with the contract between Phoenix City and Whitney because Jefferson-Pilot was a third party beneficiary of that contract. The record reflects that Whitney was hired pursuant to an oral agreement, which was subsequently confirmed by a letter agreement, to provide services to Phoenix City for the construction of a broadcasting station. All payments were to be made by Phoenix City, with the final payment being contingent upon Jefferson-Pilot’s approval of the project. “In order for a third party to have standing to enforce a contract ... it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. [Cits.]” Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976). Since the subject of the Asset Purchase Agreement was the purchase of a radio station yet to be constructed, it is evident that Jefferson-Pilot as well as Phoenix City would be benefited by having the radio station constructed. However, it does not appear that Phoenix City or Whitney intended for Jefferson-Pilot to be a direct beneficiary of their agreement such that Jefferson Pilot would have standing to enforce the contract between Phoenix City and Whitney. See Cohen, supra at 178.

Decided June 24, 1992

Reconsiderations denied July 20, 1992

Carter & Ansley, Tommy T. Holland, Keith L. Lindsay, Davis, Gregory & Christy, Hardy Gregory, Jr., for Jefferson-Pilot.

Robinson & Gilner, Will E. Robinson, for Phoenix City.

Chamberlain, Hrdlicka, White, Johnson & Williams, Richard N. Hubert, for Hollis.

Finally, the majority concludes that there is no evidence that the actions of Jefferson-Pilot were the proximate cause of any injury to Phoenix City. “[T]he courts of this state have recognized that [tortious] interference with a contractual right or relationship need not result in a breach of the contract to be actionable. It is sufficient if the invasion retards performance of the duties under the contract or makes the performance more difficult or expensive. [Cits.]” Artrac Corp. v. Austin Kelley Advertising, 197 Ga. App. 772, 774 (2) (399 SE2d 529) (1990). I find that there was evidence in the record from which the jury could determine that the interference by Jefferson-Pilot had the desired effect of harming Phoenix City’s position with its lender as well as with its employee, Whitney, and of adding to the events which led to the eventual termination of the Asset Purchase Agreement. Because I believe that the trial court acted correctly in submitting the issue of tortious interference with contract to the jury, I must respectfully dissent.

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


author: Sognier, Chief Judge.

text:
    A92A0711.
    COLE v. SHOFFNER et al.
    (421 SE2d 322)
   Sognier, Chief Judge.

William Cole brought suit against John and Juanita Shoffner seeking to recover a $10,000 earnest money deposit and expenses he had incurred arising out of his offer to purchase the Shoffners’ residence. The parties had signed a contract, but the sale did not close. The Shoffners answered and counterclaimed for damages they had incurred in preparing the residence for sale and complying with Cole’s requirements, alleging that Cole had refused to perform a valid contract with which the Shoffners had fully complied. The jury found in favor of the Shoffners on Cole’s claim and returned a verdict for the Shoffners for $150,000 in damages plus expenses of litigation on their counterclaim. Cole appeals from the denial of his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

1. In two enumerations of error, appellant contends the trial court erred by denying his motion because his complaint was filed and trial was held during the pendency of appellees’ petitions for bankruptcy (about which appellant asserts he was unaware) and thus the automatic stay provision in 11 USC § 362 (a) rendered the instant verdict and judgment null and void, citing Stone v. George F. Richardson, Inc., 169 Ga. App. 232, 234 (312 SE2d 339) (1983). It is uncontroverted that appellees did not assert the bankruptcy stay as a defense to appellant’s suit. Approximately five months after judgment was entered in the case sub judice, appellees’ bankruptcy case was dismissed and closed, and appellant’s motion to reopen the case was denied by the bankruptcy court, whereupon the trial court, having deferred ruling on appellant’s motion, entered, the order from which appellant appeals.

We find no merit in appellant’s argument that the trial court erred as a matter of law by not voiding its judgment on the basis that it violated the automatic stay in effect at the time of entry of that judgment. In Stone, supra, this court followed bankruptcy court decisions holding that “[ajctions taken in violation of an automatic stay are void and without effect. [Cit.]” Id. at 234. However, this is no longer the interpretation of 11 USC § 362 in the Eleventh Circuit. See In re Albany Partners, Ltd., 749 F2d 670, 12 BCD 787 (11th Cir. 1984), relied upon by the Fifth Circuit in Sikes v. Global Marine, 881 F2d 176 (5th Cir. 1989). Sikes held that “ ‘the characterization of every violation of section 362 as being absolutely void is inaccurate and overly broad.’ [Cit.]” Id. at 178. “More accurately, stay violations may be voidable at the debtor’s or trustee’s instance rather than absolutely void.” In re Fuel Oil Supply & Terminaling, 10 BCD 1035, 1036 (Bankr. N.D. Tex. 1983). Accord In re Silverman, 12 BCD 100, 103-104 (Bankr. S.D. N.Y. 1984). We conclude, as did the Fifth Circuit, that the filing of a complaint in an unknowing violation of an automatic stay in effect under 11 USC § 362 (a) is not void, but voidable. Sikes, supra at 178-179.

We hold that the trial court correctly sustained the judgment at issue here because, although the judgment was voidable, no bankruptcy purpose would be served by voiding it. The purpose of the automatic stay is to give the debtor a “breathing spell” from its creditors and prevent one creditor from rushing to enforce its lien to the detriment of other creditors. In re Ahlers, 794 F2d 388, 393-394 (8th Cir. 1986), rev’d on other grounds sub nom. Norwest Bank Worthington v. Ahlers, 485 U. S. 197 (108 SC 963, 99 LE2d 169) (1988). “The automatic stay is for the benefit of the debtor and if it chooses to ignore stay violations other parties cannot use such violations to their advantage.” Fuel Oil Supply &c., supra at 1036. See In re Brooks, 16 BCD 992 (BAP9 Wash. 1987), aff’d 871 F2d 89 (9th Cir. 1989). While bankruptcy courts have recognized that a creditor may have standing to seek the protection of an automatic stay, e.g., In re Reserves Dev. Corp., 64 BR 694, 699-700 (Bankr. W.D. Mo. 1986), that protection is afforded in the context of protection against other creditors, id.; Ahlers, supra at 394 n. 4, and the automatic stay is not intended to be used as a weapon by creditors to the detriment of the debtor. See Silverman, supra at 104. As noted by the bankruptcy judge in his order on appellant’s motion, a party should not be allowed to “brandish the automatic stay for purposes for which it was not intended.”

Therefore, because voiding the judgment to enforce the stay would neither benefit appellees nor protect appellant’s interest as a creditor for any of the purposes for which the use of the automatic stay is employed, the trial court did not err by denying appellant’s motion and upholding the judgment.

2. Appellant contends the trial court erred by denying his motion for a new trial made on the basis of newly discovered evidence, OCGA § 5-5-23, regarding appellees’ bankruptcy petitions. It is well established that even where all the requirements of OCGA § 5-5-23 are met, a new trial is not demanded where the newly discovered evidence is no more than impeaching in character. Stembridge v. State, 84 Ga. App. 413, 415-416 (65 SE2d 819) (1951). See also Jones v. Knightstown Body Co., 52 Ga. App. 667, 674 (11) (184 SE 427) (1936). Thus, although appellant’s attorney correctly recognized in his arguments to the trial court that the evidence in issue here would have directly affected Ms. Shoffner’s credibility at trial, that fact alone would not justify the grant of a new trial under OCGA § 5-5-23. Accordingly, this enumeration presents no ground for reversal.

3. Appellant contends the trial court erred by denying his motion for j.n.o.v. or new trial regarding the intent and validity of the sales contract signed by the parties. Appellant also enumerates error as to the trial court’s charge concerning this issue. The record reflects that the issue of the validity of the contract was not raised in appellant’s complaint or the pre-trial order, and that the issues raised prior to trial by the parties were limited to whether appellant or appellees breached the contract and, if the contract was breached, whether the breaching party acted in bad faith or was stubbornly litigious.

(a) As to any and all issues for jury determination regarding the intent and validity of the contract, the denial of appellant’s motion was not error because those issues were waived by appellant by failing to assert them in the pre-trial order, and we find no abuse of the trial court’s discretion in excluding appellant’s evidence regarding these issues upon proper objection by appellees. OCGA § 9-11-16 (b); Long v. Marion, 257 Ga. 431, 433-434 (360 SE2d 255) (1987); O’Quinn v. Southeast Radio Corp., 199 Ga. App. 491 (1) (405 SE2d 314) (1991).

(b) Appellant contends that as a matter of law the sales contract was a nullity because it constituted an unenforceable agreement to enter into an agreement in the future. Appellant points to clauses in the contract providing that the property would be surveyed prior to closing to determine the precise acreage involved and that appellant’s payment for appellees’ property would include transactions involving transfer of two other parcels of realty appellant claimed he owned as support for his argument that the contract shows on its face that the parties were still negotiating essential elements of the transaction. Pretermitting the issue whether appellant amended, withdrew, or explained the admissions and stipulations in the complaint and. pre-trial order to the effect that the sales contract was valid and enforceable, see C & S Realty Investors v. L. G. Balfour Co., 152 Ga. App. 852, 853 (2) (264 SE2d 304) (1980), we do not agree with appellant that the contract was a nullity as a matter of law. The contractual provisions on which appellant relies did not require future negotiations or indicate that agreement had not been reached on certain conditions, compare Kole v. Linkenhoker, 196 Ga. App. 124-125 (1) (395 SE2d 378) (1990) (alleged oral contract lacked essential ingredient and constituted only negotiations to reach future agreement), but instead were provisions in a valid contract based upon an agreed-upon subject matter, a defined consideration, and the uncontroverted mutual assent by all parties to all the essential terms. OCGA § 13-3-1.

(c) Appellant contends that as a matter of law the contract was too vague to be enforced because the subject property was not identified with sufficient specificity. The contract identified the property by setting forth the numbers for the land lots, district, and section in which the property lay in Coweta County, the postal address of the property, and incorporated by reference the full legal description of the property as recorded with the Clerk of the Superior Court of Coweta County. We agree with appellees that this description was sufficient to constitute a key by which the property may be identified, see Blumberg v. Nathan, 190 Ga. 64, 66 (8 SE2d 374) (1940), and thus the contract was not void for vagueness due to any insufficiency of the description of the property.

Decided July 1, 1992

Reconsideration denied July 20, 1992

Stepp, Bowers & Smith, Jerry L. Stepp, Carl H. Anderson, Jr., for appellant.

Zachary & Segraves, Rick S. Sexton, Jeffrey L. Sakas, for appellees.

(d) As to appellant’s enumeration regarding the charge to the jury, in view of our holding on the merits of the contract issues and the fact that appellant’s counsel expressly stated that appellant had no objection to the trial court’s instructions to the jury, we do not agree with - appellant that the asserted errors in the trial court’s charge were so blatantly apparent and prejudicial that they resulted in a gross miscarriage of justice so as to require reversal under OCGA § 5-5-24 (c). See Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244) (1982).

4. As appellant points out, the measure of damages for breach of a contract to sell land is the difference between the contract price and the fair market value of the land at the time of the breach. King v. Brice, 145 Ga. 65 (3) (88 SE 960) (1916). Because the sum returned by the jury ($150,000) was approximately $112,000 less than the difference between the contract price appellant agreed to pay for the property ($642,000) and the fair market value of the property (estimated by a witness at trial as $380,055); we do not agree with appellant that there was no competent evidence to support the damages awarded. Accordingly, the trial court did not err by denying appellant’s motion on this basis.

Judgment affirmed.

Pope and Cooper, JJ., concur. McMurray, P. J., disqualified.


author: Pope, Judge.

text:
    A92A0718.
    LUMPKIN v. THE STATE.
    (421 SE2d 100)
   Pope, Judge.

Defendant Melvin Lumpkin was charged with murder and felony murder and was convicted of the lesser included offense of voluntary manslaughter. He appeals, contending that the trial court erred in admitting evidence of two prior offenses and that the evidence presented at trial was insufficient to sustain his conviction.

1. Contrary to defendant’s third enumeration of error, the evidence adduced at trial was sufficient to authorize his conviction under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although the evidence was not without conflict, it is the duty of the trier of fact, not this court, to weigh the evidence and determine the credibility of the witnesses presented at trial. See Blackshear v. State, 199 Ga. App. 839 (1) (406 SE2d 269) (1991); Cox v. State, 197 Ga. App. 240 (5) (398 SE2d 262) (1990).

2. In 1983 and 1985 defendant entered guilty pleas to charges of aggravated assault. The State originally intended to introduce evidence of these prior crimes by introducing copies of the indictments, guilty pleas and sentences entered on the previous offenses. However, after the Georgia Supreme Court issued its decision in Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991) another hearing was held on the introduction of the prior crimes evidence. At the second hearing, the State summarized the anticipated testimony of the victims of the aggravated assaults. At the close of the second hearing, the trial court again ruled the evidence admissible.

Defendant first argues that the trial court erred in admitting evidence of the previous offenses because they were not sufficiently similar to the crime for which defendant was on trial in this case. In support of this contention, defendant argues that there were dissimilarities between the previous offenses, and thus it would be inconsistent to find both of these dissimilar offenses similar to the charges in this case. Defendant also points to certain dissimilarities between the previous offenses and the present crime.

The victim of the 1983 assault testified the defendant approached him while he was dancing with his girl friend in a nightclub and accused the victim of taking his money. The defendant hit the victim and the victim hit him back. The defendant suggested they should “take this outside” but the victim’s girl friend stopped him from going outside. Defendant was waiting outside when the couple left approximately an hour later. The defendant remarked they could “finish it now” and the victim struck the defendant. The defendant hit the victim back and then took out a knife and began swinging it at the victim, cutting him twice. Following this testimony the trial court ruled the evidence concerning the 1983 aggravated assault admissible to show “course of dealing.”

The victim of the 1985 incident testified he was attacked by defendant without provocation or warning while he was standing beside a friend’s car. According to the victim, he was talking to his friend when the defendant, who was a backseat passenger in the automobile, “motioned up and hit him” and that he saw a flash and realized that defendant had cut him on his neck. Following the victim’s testimony, the State offered the evidence to show “scheme of conduct, identity and state of mind” and the court ruled the evidence admissible for that purpose.

The evidence concerning the crime in this case was not without dispute. Evidence was presented that defendant cut the victim without provocation or warning. Evidence was also presented that the defendant said something in anger to the victim earlier in the evening before the incident occurred and that he again made some remark to the victim immediately before he began cutting him. Consequently, the evidence would authorize the finding that the crime here was committed after the defendant and the victim had argued; the evidence presented would also authorize a finding that no argument preceded the defendant’s actions and that he started cutting the victim without provocation. The defendant told police the victim started the altercation and that he cut the victim in self-defense; defendant did receive a wound to his hand which apparently occurred during the altercation. The transcript shows the witnesses to the present crime had all been drinking alcoholic beverages shortly before this incident and that their testimony was unclear on both the particulars surrounding the events leading up to the incident as well as the exact manner in which the crime occurred. What is clear is that the crime could not have been committed in a manner similar to both of the previous crimes. In the 1983 incident the defendant cut the victim with a knife after the two had argued and exchanged physical blows; in the 1985 incident the defendant merely reached up and cut the victim in the neck area without provocation or warning and without any words having passed between the parties. To hold that both of these offenses are similar to the present crime, no matter which version of events is accepted as the true account of how the crime occurred in this case, is, as defendant argues, inconsistent.

Moreover, to the extent that the two previous crimes are similar, such similarities are dissimilar to the crime charged in this case. The earlier crimes were both committed in a public place, but the present offense happened in or around a private residence. In the previous altercations the defendant cut the victims once or twice, and the injuries were apparently not life threatening; in the present case, the defendant cut the victim five times and inflicted fatal injuries.

The trial court indicated the previous offenses were being admitted primarily to show course of conduct. However, inasmuch as defendant’s conduct during the prior offenses differed in each instance, no “course” of conduct was demonstrated, and “[t]he earlier [offenses] did not tend to establish any of the purposes to which the court confined it . . . .” Burney v. State, 201 Ga. App. 64, 65 (410 SE2d 172) (1991). “[Defendant’s] independent crimes were other [incidents where defendant had cut someone with a knife or sharp object] involving dissimilar facts and committed between [five] and [seven] years prior to the date of the commission of the crime charged. Thus, the other crimes were not relevant to that for which [defendant] was on trial. Although the State proved the details of the prior crimes, there was insufficient similarity and no logical connection so that proof of the independent crimes tended to establish the crime charged, except by raising an inference that [defendant], who had [cut people with a knife] on prior occasions, was likely to have committed the [crime] being tried.” Radford v. State, 202 Ga. App. 532, 535 (415 SE2d 34) (1992).

Decided July 1, 1992

Reconsideration denied July 20, 1992.

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

“Because the evidence against defendant was not overwhelming, the admission of the prior [offenses] was not harmless error . . . [cits.].” Burney, 201 Ga. App. at 66.

3. Defendant also contends the trial court erred by admitting the prior crimes evidence without making a proper finding as to the purpose for which the transactions were being offered.

Because of our holding in Division 2, supra, it is unnecessary for us to decide whether the trial court’s findings in this case on the admissibility of the prior crimes evidence were sufficient. However, we note the Georgia Supreme Court’s decisions in Williams v. State, 261 Ga. 640, 642 & n. 3 (409 SE2d 649) (1991) and Maxwell v. State, 262 Ga. 73, 75 n. 2 (414 SE2d 470) (1992) require trial courts to determine on the record whether the State has met the prerequisites for the admission of similar transaction evidence.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.

       This appeal is from defendant’s second trial. Defendant’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict.


author: Andrews, Judge. Beasley, Judge,

text:
    A92A0264.
    COBB COUNTY v. PRINCETON ASSOCIATES.
    (421 SE2d 102)
   Andrews, Judge.

Cobb County instituted condemnation proceedings to acquire property belonging to Princeton Associates for a road improvement project. The project required the construction of a raised concrete median to separate northbound and southbound lanes of traffic. The county paid $71,425 into the registry of the court, Princeton appealed the amount of the compensation and demanded a jury trial on the issue of damages. The case was tried and from the verdict for Princeton of $109,500, the county appeals.

1. In its first enumeration of error, the county claims that the trial court erred in overruling its motion in limine to exclude evidence of the impact of the raised median divider on the property as an item of compensable damage. The construction of the median prohibited customers from making left turns into and out of the property, as they were able to do before its construction. Princeton argued that because of the median, the lower level of the building, which had previously been rented as retail space, was only usable as office space.

At the outset, we note that in an action of this nature, the effect of the construction of a median on property is not an element of compensable damage. Clark v. Clayton County, 133 Ga. App. 171 (210 SE2d 335) (1974); Dougherty County v. Snelling, 132 Ga. App. 540 (208 SE2d 362) (1974); Hadwin v. Savannah, 221 Ga. 148 (143 SE2d 734) (1965). Princeton’s reliance on Circle K v. Dept. of Transp., 196 Ga. App. 616 (396 SE2d 522) (1990), in the instant context, therefore is misplaced.

Nonetheless, the trial court’s denial of the motion in limine did not constitute harmful error. The court held a hearing on the motion before the trial of the matter began. At that time, the court stated: “I will overrule his motion in limine. I’ll take another look at it if the evidence is offered.” Appellant does not enumerate as error any subsequent specific evidentiary rulings.

“This does not amount to an overruling of the motion. [Cits.]” Pirkle v. Hawley, 199 Ga. App. 371 (10) (405 SE2d 71) (1991). “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial.” State v. Johnston, 249 Ga. 413 (3) (291 SE2d 543) (1982); see also Morris v. Southern Bell Tel. &c. Co., 180 Ga. App. 145 (1) (348 SE2d 573) (1986); see generally Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985). Accordingly, we find no error.

2. In its second enumeration, the county argues that the trial court erred in failing to direct a verdict in favor of appellant on the issue of consequential damages. Our review of the record shows that appellant’s own expert testified regarding consequential damages. See generally OCGA §§ 32-3-16 (b) (2); 22-2-109 (c); 22-2-137 (c). “ ‘One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.’ [Cits.]” Stephenson v. Wildwood Farms, 194 Ga. App. 728, 729 (2) (391 SE2d 706) (1990). Accordingly, there was no error in the trial court’s denial of the motion for directed verdict.

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

With respect to Division 1 of the majority opinion, appellant condemnor argues that the overruling of its motion in limine resulted in the admission of “testimony pertaining to the median and its impact on [appellee’s] access,” as a basis for consequential damages to condemnee’s remainder. This court rules that the trial court did not overrule the motion so that, in effect, appellant did not preserve its objection to the admission of that evidence because it did not object when it was offered during the trial.

The court clearly overruled the motion; it said it did, thus making way for the evidence to be introduced. In fact, the movant expressly addressed the need for a ruling prior to trial. Although the court can refuse to decide admissibility before trial, if it decides to rule, as it did here, the ruling “ ‘ “controls the subsequent course of action, unless modified at trial to prevent manifest injustice.” ’ Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-6 (260 SE2d 20) (1979).” State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982).

The court did not do what the trial court did in Morris v. Southern Bell Tel. &c. Co., 180 Ga. App. 145 (1) (348 SE2d 573) (1986). There it did not deny the motion but rather refused to rule on it and stated that the movant would have to object as the evidence was offered. That manifestly puts the burden on the objector to raise the point in the context of the trial. The same clarity is evidenced in Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985). The court declined to rule and instructed that admissibility would be decided during the course of the trial. This is in keeping with what is said in Johnston, supra at 415: “The trial court has an absolute right to refuse to decide the admissibility of evidence, . . . prior to trial.” In Pirkle v. Hawley, 199 Ga. App. 371, 377 (10) (405 SE2d 71) (1991), the court did not rule on the motion but instead reserved ruling on admissibility and instructed movant to raise his objections at the time the evidence was solicited. Similarly in Hicks v. State, 175 Ga. App. 243 (1) (333 SE2d 113) (1985), the court reserved ruling on admissibility and informed counsel that each issue would be dealt with as it arose.

The court in this case did not refuse to decide; it decided adversely to appellant, and the question of the admissibility of the evidence has been preserved for review. As in Harley-Davidson, supra at 286 (1), “[t]he trial court has been apprised of the possible error in admitting the evidence and has made its ruling, and the record has been perfected for appeal purposes.”

Decided July 1, 1992

Reconsideration denied July 21, 1992

Awtrey & Parker, Dana L. Jacket, Linda W. Brunt, for appellant.

Moore & Rogers, John H. Moore, Sara J. Murphree, for appellee.

In this case, the trial court’s adding to its ruling the statement “And I’ll take another look at it if the evidence is offered” is ambiguous at best. It could put the movant on notice that the court would be willing to reconsider its ruling and modify it if movant still objects when the subject is broached in the course of the trial. Or it could mean that the court intends to reconsider its ruling at that crucial time, without any further action on movant’s part because the court is already aware of the objection. In either event the overruling of the motion has occurred and, just as in Johnston, appellant is due our review of the admissibility of the evidence.

Since the appellant’s own expert testified regarding loss of rents as consequential damages, the denial of the motion in limine and the admission of the evidence sought to be excluded were not reversible error.


author: Andrews, Judge.

text:
    A92A0401.
    A92A0405.
    DOYAL v. THORNTON. LESSER et al. v. THORNTON.
    (421 SE2d 314)
   Andrews, Judge.

These two appeals arise out of the same lawsuit, which was based on the following facts. On September 2, 1987, appellee Thornton sold the business entity, Vermillion Bay. Thornton was paid $334,000 at closing and was given a promissory note, signed by the president of Vermillion Bay, for the balance of $334,000. In connection with the note, a security agreement and stock pledge agreement were executed. An assumption agreement which .listed Vermillion’s outstanding debts, and listed as one of those debts a lease between Vermillion Bay and Gate City Oil Equipment Company, was executed in connection with the sale. In addition to other provisions, the lease provided that, unless exempted, Gate City owned the moveable fixtures and equipment and personal property in the building. There is evidence in the record that appellants in Case No. A92A0405 had guaranteed the lease of March 1987, of which they now claim they were unaware.

Also executed on September 2, 1987 in connection with the sale was a guaranty agreement which provided in part: “[T]he undersigned hereby unconditionally guarantees the payment of that certain Secured Promissory Note . . . and further unconditionally guarantees all extensions or renewals of said Note, and all expenses (including reasonable attorneys’ fees) incurred in the collection thereof, the enforcement of rights under any security therefor and the enforcement hereof, and waives presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and agrees that the holder of said Note may from time to time extend or renew said Note for any period (whether or not longer than the original period of said Note) and may grant any releases, compromises, or indulgences with respect to said Note or any extension or renewal thereof or any security therefore or to any party liable thereunder or any security therefore or to any party liable thereunder or hereunder (including, without limitation, failure or refusal to exercise one or more of the rights or remedies provided by said Note), all without notice to or consent of the Undersigned and without affecting the liability of the Undersigned hereunder, who may be sued by the holder hereof with or without joining any of the other endorsers or makers of said Note and without first or contemporaneously suing such other persons, or otherwise seeking or proceeding to collect from them.”

The four appellants in these two cases, Doyal, the Lessers and Hitchcock, are four of the eight guarantors who signed the guaranty agreement.

In March 1988, Vermillion Bay defaulted under the terms of the note and Thornton sued the eight signatories to the guaranty agreement. The court granted summary judgment to Thornton and denied Doyal’s motion for summary judgment. In Case No. A92A0401, Doyal appeals the order granting summary judgment and the denial of his motion and in Case No. A92A0405, the Lessers and Hitchcock appeal the grant of summary judgment.

Case No. A92A0401

1. In his first enumeration of error, Doyal claims that the trial court erred in denying his motion for summary judgment since there was a mutual mistake of fact in the formation of the contract. Citing OCGA § 13-5-4, he claims that both he and Thornton misunderstood the ownership of the personal property of Vermillion Bay and were not aware that Thornton rented such property and that this mistake invalidates the guaranty. In the alternative, Doyal argues that if no mutual mistake in forming the contract existed, then Thornton fraudulently misrepresented the ownership of the fixtures.

First, we find no indication from the record that Thornton fraudulently misrepresented the ownership of the fixtures and any allegations in this connection are meritless.

DoyaPs argument that the agreement should be voided because of mutual mistake in making the contract is without merit for several reasons. Under OCGA § 13-5-4, Doyal argues that the personal property was the consideration upon which the guaranty agreement was based and that therefore the contract cannot be enforced. Pretermitting the question of whether Doyal may even raise this defense given the language of the guaranty agreement, see generally Greene v. Bank of Upson, 231 Ga. 287 (201 SE2d 463) (1973); McGarr v. Bank of Pinehurst, 159 Ga. App. 116 (2) (282 SE2d 739) (1981), this enumeration is without merit because the personal property was not the consideration for this agreement. “ ‘The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit... to his principal. . . .’ OCGA § 10-7-1.” (Emphasis omitted.) Virgil v. Kapplin, 187 Ga. App. 206, 208 (3) (369 SE2d 808) (1988); see generally Beard v. McDowell, 174 Ga. App. 793, 795 (331 SE2d 104) (1985).

To the extent that Doyal’s contention is based on OCGA § 10-7-3, this argument is also unavailing. While it is true that the undertaking of a surety cannot be extended further than the terms of his contract, the extent of Doyal’s obligation never changed and his obligation has not been extended. Compare Stone v. Palm Pool Prods., 198 Ga. App. 751 (403 SE2d 69) (1991).

The trial court did not err in failing to grant Doyal’s motion.

2. Doyal’s second enumeration of error argues that the trial court erred in not making an explicit “finding of facts” and that in failing to do so the trial court implicitly accepted his version of facts and corresponding conclusions. This argument is without merit. See generally OCGA § 9-11-52; Fudge v. Colonial Baking Co., 186 Ga. App. 582 (1) (367 SE2d 814) (1988).

3. In his third enumeration of error, Doyal claims that the trial court erred in sustaining Thornton’s motion for summary judgment since numerous issues of fact remain in the case including fraud, the illegal transfer of title to property to which Thornton had no title and as to whether the assumption agreement was altered subsequent to Doyal signing it. We find no merit in Doyal’s arguments.

The record reflects no factual issues with respect to the clear terms of the guaranty agreement, none of the defenses under OCGA § 11-3-606 apply and the terms of the guaranty agreement control. See generally Bullard v. Carreras, 183 Ga. App. 539 (3) (b) (359 SE2d 429) (1987); (H & H Operations v. West Ga. Nat. Bank, 181 Ga. App. 766 (1) (353 SE2d 633) (1987)).

4. In his fourth enumeration of error, Doyal claims that the trial court erred in denying his motion for summary judgment on the basis that the contract sued upon was illegal and fraudulent. This enumeration argues that Thornton fraudulently deceived the guarantors regarding the ownership of the property. This argument is not supported by the record. In fact, the record is unclear as to whether Thornton himself was aware of who owned the property. In any case, there was no error in the trial court’s denial of Doyal’s motion. See generally Casgar v. C & S Nat. Bank, 188 Ga. App. 234 (1) (372 SE2d 815) (1988).

To the extent that Doyal makes arguments which are not listed as enumerations of error, such arguments will not be considered.

Case No. A92A0405

1. Appellants Steven Hitchcock and Bruce and India Lesser’s first enumeration of error sets forth arguments identical to Doyal’s first enumeration above and is similarly without merit.

2. In their second enumeration appellants argue that the trial court erred in failing to find that Thornton by his guaranty of the lease agreement “pre-impaired” the collateral assigned by Vermillion Bay as security for its September 2,1987 promissory note. Appellants’ reliance on OCGA § 11-3-606 (1) (b) is misplaced. Furthermore, with the defense of impairment of collateral under OCGA § 11-3-606 (1) (b), the burden of proof is on the party claiming the defense, and he must prove it by a preponderance of the evidence. Bank South v. Jones, 185 Ga. App. 125 (1) (364 SE2d 281) (1987). There is no evidence that Thornton impaired the collateral in any fashion; the evidence is simply that appellants misunderstood what the collateral was. It is apparent that appellants consented in advance to an impairment of collateral and are estopped to assert the defense of impairment of collateral. H & H Operations, supra; Hunter v. Community Loan &c. Corp., 127 Ga. App. 142 (193 SE2d 55) (1972); see also 6 Anderson, Uniform Commercial Code, 3d ed., § 3-606:17, p. 574. Further, there is no evidence that the collateral was impaired subsequent to the agreement.

3. In their third enumeration, citing OCGA § 10-7-3, appellants claim that the trial court erred in extending the guarantors’ liability on a promissory note which the guarantors believed was a secured promissory note when it actually was an unsecured promissory note. Again, as set forth above in enumeration 1, the trial court did not extend the agreement beyond the terms to which the parties contracted and this enumeration is without merit.

Decided June 30, 1992

Reconsideration denied July 21, 1992

McGee & Oxford, James C. Carr, Jr., Stanley P. Meyerson, for appellant (case no. A92A0401).

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Myles E. Eastwood, David N. Lefkowitz, Simmons, Warren & Szczecko, Joseph Szczecko, for appellants (case no. A92A0405).

Driebe & Driebe, Charles J. Driebe, D. Keith Scott, Jr., for appellee.

4. In their fourth enumeration, appellants claim that issues of fact remained and that the trial court’s grant of summary judgment was improper. We disagree and find that the ruling was proper.

Judgments affirmed in Case Nos. A92A0401 and A92A0405.

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

       In considering summary judgment, a court does not “find” facts as it would in a bench trial. OCGA § 9-11-56 (c). Instead, it culls from the record what the undisputed material facts are. OCGA § 9-11-56 (c).


text:
    A92A0454.
    CHAMBERS v. THE STATE.
    (421 SE2d 326)
   Andrews, Judge.

Chambers appeals his conviction for incest and child molestation.

1. In his first enumeration of error, Chambers contends that the trial court erred in allowing the victim/witness director of the county district attorney’s office to testify regarding the contents of a conversation she had with the victim. Chambers claims that the prosecution was barred from calling this witness because in doing so the prosecution essentially vouched for the credibility of one of its own staff members.

Pretermitting the issue of whether the objection was properly preserved, we find this argument without merit. We find no error in the trial court’s decision allowing the victim/witness director to testify. See generally OCGA § 24-3-16. Chambers’ argument that Timberlake v. State, 246 Ga. 488 (7) (271 SE2d 792) (1980), bars this testimony is without merit. See generally Ware v. State, 191 Ga. App. 896 (383 SE2d 368) (1989).

2. In his second enumeration, Chambers claims that the trial court erred in refusing to allow testimony from four witnesses regarding the victim’s prior accusations of molestation by persons other than Chambers and her subsequent retractions of those other accusations.

Chambers’ argument is without merit. During the trial, the State introduced into evidence a videotape in which the victim admitted that she made a false accusation regarding sexual activity by a male other than Chambers, which accusation she subsequently retracted. During the videotape, the victim discussed both the false accusation and its retraction.

After the introduction of this testimony, Chambers sought to introduce testimony of witnesses who would testify to identical accusations by the victim regarding the same alleged sexual activity by the same male. Outside the presence of the jury, one of the witnesses was examined with regard to the alleged pattern of false accusations. The testimony which was presented was essentially a repetition of the victim’s earlier videotaped admission of her false accusation.

Pretermitting the question of whether Chambers perfected the record for our review with respect to the expected testimony of three of the witnesses, see Thompson v. State, 187 Ga. App. 152 (369 SE2d 523) (1988), we find that the requirements of Smith v. State, 259 Ga. 135 (1) (377 SE2d 158) (1989), were satisfied by the admitted videotape of the prior accusation and retraction. Although Smith held that the rape shield protection of OCGA § 24-2-3 does not prohibit testimony of previous false allegations by the victim after a determination by the court of the falsity of such allegations, we do not read Smith as mandating the admission of this duplicate testimony. Here, the proffered testimony contained no additional information regarding the false accusations, the State had already impeached its own witness by presenting the evidence and there was no harmful error in the trial court’s decision to exclude the testimony. See generally Gibbs v. State, 196 Ga. App. 140 (1) (395 SE2d 387) (1990).

3. Chambers argues that the trial court erred in excluding from evidence the contents of telephone conversations between the victim and her mother, which he sought to introduce through the testimony of several witnesses. Chambers claims that the conversations would have established a motive for the victim to falsely accuse Chambers. Chambers was allowed to pursue the issue of motive and does not cite any authority for allowing this hearsay evidence. We find no error in the trial court’s exclusion of this evidence. See generally OCGA § 24-3-1; Martin v. State, 196 Ga. App. 145 (3) (395 SE2d 391) (1990).

4. In his fourth enumeration of error, Chambers contends that the trial court erred in refusing to allow him to introduce medical evidence of a sexually transmitted disease, gardnella vaginalis, for which the victim had tested positive. Chambers claims that the evidence would have indicated that he had not molested the victim and that he should have been permitted to introduce the evidence, not to prove that the victim had engaged in sexual intercourse with other men, but to exclude the possibility that he had had intercourse with her.

There was medical testimony at trial that after the victim reported the acts of molestation, she was examined by a Dr. Connor in October 1990. The victim told Connor that she had been molested from approximately August 1989 until August 1990. Dr. Connor did not perform the clinical tests regarding gardnella vaginalis, because he did not see “clue cells” which would have indicated that the disease was present. He stated that pus cells, which could have been suggestive of the disease were present. He testified that at the time of his examination, he did not make -a conclusive diagnosis regarding the disease. Connor testified that the condition can be cured within one to two weeks by antibiotics or by the application of a cream.

Although Chamber’s argument is somewhat unclear, it appears that he contends that the trial court erred in excluding from the jury’s consideration additional testimony regarding the disease. The testimony he claims was erroneously excluded was that of a Dr. Johnson and that of a third doctor regarding the disease. Pursuant to OCGA § 24-2-3 (b) the court held a hearing outside the presence of the jury and concluded that the doctors’ testimony was inadmissible.

In Dr. Johnson’s statement, which Chambers proffered, she swore as follows: “On March 19, 1991,1 conducted a physical examination of [the victim]. One of my findings was that [the victim] had Gardnella vaginalis. Gardnella vaginalis is a bacteria which is most probably transmitted by sexual intercourse. Gardnella vaginalis can be clinically diagnosed for a female, however, it cannot be clinically diagnosed for a male. If untreated, gardnella vaginalis can remain with a person for an indefinite period of time. If treated, gardnella vaginalis can be cured. Also, it is possible for a person to have this bacteria and for it to go away without treatment.” This document is labeled “stipulation” since the parties agreed that it was the substance of Dr. Johnson’s testimony, although they disagreed over its admissibility.

Chambers also argues that the trial court erred in excluding the testimony of a third doctor regarding the disease. Defense counsel proffered the affidavit of the third doctor which stated that gardnella vaginalis is a very infectious, sexually transmitted bacteria, for which both males and females can be tested. The affidavit stated that the doctor examined Chambers and his wife in August 1991, and that at that time, neither Chambers nor his wife showed signs of the disease, nor did they report that they had taken antibiotics during the previous 12 months.

The trial court ruled that under the rape shield statute, the evidence was inadmissible because it was not relevant on the issue of consent. OCGA § 24-2-3 (b). Although we agree that the evidence was not admissible on the issue of consent for a number of reasons, see, e.g., Worth v. State, 183 Ga. App. 68, 72 (4) (358 SE2d 251) (1987), we find that the trial court erred in refusing to admit the evidence. In White v. State, 201 Ga. App. 53 (410 SE2d 441) (1991), this Court reversed the trial court’s exclusion of evidence regarding the victim’s physical condition after the alleged rape in that such evidence was relevant to corroborate the defendant’s version of events.

Similarly, in Reece v. State, 192 Ga. App. 14 (383 SE2d 572) (1989), this court ruled that in the trial for rape, statutory rape and child molestation, evidence of the victim’s infection was improperly excluded. In Reece, the State elicited testimony that suggested that the defendant had transmitted a disease to the victim. In response to this testimony, the defendant sought to introduce evidence that the defendant’s wife did not have the disease during the relevant time period. The trial court excluded such evidence. This court held that because the testimony that the victim had contracted the disease implied that the defendant had given the victim the disease, it was error not to allow the defendant to put forward the evidence.

“Particularly since the doctor testified the victim maintained that she had not had sexual intercourse with anyone else, the testimony . . . virtually compels the jury to reach but one conclusion: that the defendant had sexual intercourse with her. He [the defendant] should have been allowed, in a proper fashion, to show by his wife’s medical records, or otherwise, that his wife was then undergoing medical treatment and tests for pregnancy and showed no sign of this disease, and therefore, by logical extension, that the defendant did not have the disease. We do not see how allowing this vital defense to be put forward offends the rape shield law, OCGA § 24-2-3, in any way at all. . . . This is not an improper attempt to explore the victim’s past or other sexual experience. . . . Any possible harm caused to the victim by such speculation is far outweighed by the harm done to the defendant in denying him the opportunity to prove he did not have the disease.” Id. at 16.

The facts here compel the same result. Although we are aware of the lapse of time between the last date of molestation, the date of the diagnosis of the victim’s disease and the date of Chambers’ examination, the evidence was essential to Chambers’ defense and the trial court erred in excluding it. It was conceivable that Dr. Connor’s testimony that suggestive cells of the disease were present in the victim’s body created the impression that Chambers had given her the disease. Because of this, Chambers should have been allowed to present evidence that he did not have the disease. The trial court erred in disallowing the evidence for the purpose of corroborating Chambers’ defense, not for the purpose of exploring the victim’s past or other sexual behavior. Compare Brown v. State, 173 Ga. App. 640 (1) (327 SE2d 515) (1985); Ford v. State, 189 Ga. App. 395 (376 SE2d 418) (1988). Accordingly, we need not address the remaining enumerations.

Decided July 1, 1992

Reconsideration denied July 21, 1992.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Leigh E. Patterson, Assistant District Attorneys, for appellee.

Judgment reversed.

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


author: Johnson, Judge.

text:
    A92A0660.
    C. B. I. NA-CON, INC. v. MACON-BIBB COUNTY WATER & SEWERAGE AUTHORITY.
    (421 SE2d 111)
   Johnson, Judge.

C.B.I. Na-Con, Inc. entered into a contract with Macon-Bibb County Water & Sewerage Authority (the authority) to construct an addition to the Rocky Creek Water Pollution Control Plant. The project engineer was Jordan, Jones & Goulding, Inc. (JJ&G).

C.B.I. encountered construction delays on the project for which it sought time extensions and additional compensation. Pursuant to the procedures outlined in the contract between C.B.I. and the authority, C.B.I. notified JJ&G of its need for additional time and compensation as a result of: 1) abnormal weather conditions; 2) leaks in an aeration basin, caused by deficient design; and 3) sewerage overflows. JJ&G determined that C.B.I.’s claims lacked merit and denied C.B.I.’s request for extensions and additional compensation.

Thereafter, C.B.I. brought suit against the authority in superior court. The authority filed a motion for partial summary judgment. The trial court granted the authority’s motion on the basis that Article 10 of the contract between C.B.I. and the authority was a contractual clause rather than an arbitration clause, and the determination of the validity of the claims submitted by C.B.I. fell within the scope of JJ&G’s discretion under Article 10. C.B.I. appeals from the trial court’s order granting the authority’s motion.

1. C.B.I. contends that the trial court erred in interpreting Article 10 of the general conditions of the construction contract so as to vest in JJ&G the final, conclusive, and unappealable authority to determine the validity of C.B.I.’s requests for time extensions and additional compensation made during the project. We agree.

Article 10 of the contract entered into by C.B.I. and the authority provides as follows: “The Engineer shall act as the Owner’s representative during the construction period. He shall decide questions which may arise as to the quality and acceptability of products furnished and work performed. He shall interpret the intent of the Contract Documents in a fair and unbiased manner. The Engineer will make visits to the site and determine if the work is proceeding in accordance with the Contract Documents. He shall judge as to the accuracy of quantities submitted by the contractor in partial payment estimates and the acceptability of the work which these quantities represent. The decision of the Engineer shall be final and conclusive and binding upon all parties to the contract.”

Decided July 10, 1992

Reconsideration denied July 21, 1992

Griffin, Cochrane & Marshall, Harry L. Griffin, Jr., Robert D. Marshall, John D. Marshall, Jr., Robert T. Tifverman, for appellant.

An engineer can make final and binding decisions if granted the authority and the decisions are within the authority conferred by the parties. See State Hwy. Dept. v. MacDougald Constr. Co., 189 Ga. 490 (6 SE2d 570) (1939). In the instant case, C.B.I. submitted requests for extensions of time and additional compensation to JJ&G as a result of abnormal weather conditions, leaks in an aeration basin caused by deficient design, and sewerage overflows. On its face, Article 10 does not confer authority upon JJ&G to make binding decisions regarding requests for time extensions for the reasons outlined by C.B.I. in its claims, nor does the provision provide JJ&G with the authority to make binding decisions regarding claims for additional compensation.

In fact, the record indicates that other provisions in the subject contract designate the authority itself as the exclusive entity to consider and determine the merit of C.B.I.’s requests for time extensions and additional compensation. The provisions which specifically pertain to claims submitted for additional time and compensation conclusively establish the limited scope of authority conferred by Article 10. After consideration of the contract as a whole, we find that Article 10 does not relate to questions regarding the subject claims. “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” (Emphasis supplied.) OCGA § 13-2-2 (4); see also Hunsinger v. Lockheed Corp., 192 Ga. App. 781 (386 SE2d 537) (1989). Accordingly, the trial court erred in granting partial summary judgment in favor of the authority.

2. Our holding in Division 1 renders moot the remaining enumerations of error.

Judgment reversed.

Carley, P. J., and Pope, J., concur.

Smith & Fleming, Robert 0. Fleming, Jr., George D. Wenick, Jones, Cork & Miller, Warren W. Plowden, for appellee.