author: McMurray, Presiding Judge.

text:
    A91A0497.
    REMLER v. SHIVER.
    (408 SE2d 139)
   McMurray, Presiding Judge.

Edith Shiver, formerly known as Edith Griner, and attorney Albert N. Remler have been involved in the case sub judice since January 29, 1987. Shiver then sued attorney Remler and Bankers First Federal Savings & Loan Association (“Bankers First”) and alleged that she purchased two subdivision lots from Bankers First; that Bankers First financed the sales and that attorney Remler closed the transactions. Shiver claimed that the lots turned out to be unmarketable because of “perceived title defects ...” and sought to rescind the sales contracts and to recover “general[,] punitive and exemplary” damages, alleging that Bankers First breached warranties of title; that Bankers First and attorney Remler fraudulently induced her to purchase the unmarketable subdivision lots and that attorney Remler was professionally negligent in “failing to discover, to reveal and to inform [her] of title defects, which, if disclosed, would have caused her either not to purchase said properties or to purchase same only with additional considerations, terms and assurances.” (Shiver also sought to enjoin Bankers First from foreclosing her interests in the lots.) Attorney Remler answered and admitted that he closed the sales transactions between Bankers First and Shiver, but denied the remaining material allegations of the complaint.

On May 27, 1987, Shiver filed an amended complaint and more particularly alleged that Bankers First and attorney Remler fraudulently induced her to purchase the subdivision lots; that Bankers First had breached warranties of title and that attorney Remler was professionally negligent. Shiver also claimed defamation (“libel”) and sought recovery for intentional infliction of emotional distress, alleging that Bankers First and attorney Remler wrongfully foreclosed her interest in the subdivision lots and that the foreclosure advertise-merits damaged her business reputation.

On March 8, 1988, Shiver filed a second amended complaint and admitted that the alleged title deficiencies were resolved in her favor via a superior order “dated” September 4, 1987, but alleged that she “expended approximately $4,100.00 ... to correct the title defect.” Shiver then reasserted her claims of professional malpractice, breach of warranties of title, fraudulent inducement of contract and defamation. However, on July 15, 1988, attorney Remler and Bankers First moved for summary judgment on these claims.

On August 17, 1988, Shiver filed a third amended complaint, alleging that Bankers First and attorney Remler “engaged in unfair and deceptive practices in consumer transactions in violation of the Fair Business Practices Act of 1975 and are liable to [her] for treble damages.”

On September 16, 1988, attorney Remler filed an answer and denied the material allegations of the amended complaints. He also filed a counterclaim for abusive litigation.

On October 4, 1988, Shiver dismissed without prejudice her claim that Bankers First and attorney Remler “engaged in unfair and deceptive practices in consumer transactions in violation of the Fair Business Practices Act of 1975 and are liable to [her] for treble damages.”

On November 21, 1988, the trial court granted Bankers First’s and attorney Remler’s motion for summary judgment and Shiver filed an appeal to the Supreme Court of the State of Georgia. On May 25, 1989, the Supreme Court of the State of Georgia affirmed the order granting summary judgment to Bankers First and attorney Remler. Bankers First filed a motion for attorney fees and expenses of litigation pursuant to OCGA § 9-15-14. The trial court denied this motion, finding that Shiver’s claims against Bankers First were not substantially frivolous, substantially groundless or substantially vexatious. The trial court based its order on the following findings of fact:

“Defendant attorney Albert N. Remler whose testimony was offered by defendant Bankers First in support of its motion for attorney’s fees was inconsistent and equivocal in portions of his testimony particularly with respect to his contention that Bankers First was his client rather then the plaintiff[, Shiver]. Defendant Remler insisted that plaintiff Shiver was not his client at the closing on Lots 11 and 12 although he had accepted a fee from her for examining the title. This was in addition to fees received from defendant Bankers First at the closing which were deducted from the proceeds of the loan. . . . An internal memorandum generated by defendant Remler’s law firm showed defendant Remler’s client to be Edith Griner Realty. . . . Defendant Remler sent two letters to third parties four days prior to the closing stating that he represented both defendant Bankers First and plaintiff Griner (later Shiver) in connection with the two properties. The above circumstances are inconsistent with defendant Remler’s contention that he represented only defendant Bankers First. . . . Defendant Remler sent letters to various real estate lawyers in Savannah stating that plaintiff Shiver, whom he knew to be a real estate broker and contractor, had stopped making payments on her loans from defendant Bankers First before she claimed that the title to the two lots was defective. Defendant Remler acknowledged that at the time he made the statement he did not know it to be true. Defendant Bankers First, in response to [Shiver’s] request for admissions, had admitted that plaintiff [Shiver] notified it of alleged title defects before she ceased making payments. . . . Defendant Remler admitted that he did not do a full title search on titles to Lots 11 and 12 Lake-view Subdivision but that he reviewed abstracts done by other attorneys to the back title of the subdivision. Plaintiff Shiver would not have purchased the properties from defendant Bankers First if she had known that defendant Remler had not performed a complete title examination. . . . During the period prior to the trial of this case and before granting the motion for summary judgment, defendant Bankers First extended three settlement offers to plaintiff [Shiver]. The final offer was extended three days prior to the date set for trial. It offered to forgive [Shiver’s] indebtedness on one of the properties, to take one of the properties back, to forgive the accrued interest, and perhaps to forego recovery of attorney fees incurred. The approximate value of the final settlement offer exceeded one hundred thousand ($100,000.00) dollars. This offer was extended by defendant Bankers First in light of the possibility that the bank could lose the trial.”

On July 2, 1990, Shiver filed a motion for summary judgment as to attorney Remler’s counterclaim for abusive litigation. Shiver also filed an expert’s affidavit wherein it was deposed that Shiver was “justified in asserting litigation claims or defenses based on a breach of warranty of title.” In opposition, attorney Remler relied on expert affidavits wherein it was deposed that “Shiver’s claims as set forth in her Amended Complaint regarding defective title to the subject property are unfounded, incorrect, misplaced and without any legal basis or merit.” The trial court granted summary judgment to Shiver, adopting the findings of fact contained in the order on Bankers First’s OCGA § 9-15-14 motion for attorney fees and costs of litigation and finding that Shiver’s “original action against [attorney Remler was not] completely absent of any justiciable issue of law or fact [and] that said claim [did not lack] substantial justification.” This appeal followed. Held:

1. Attorney Remler contends the trial court erred in granting Shiver’s motion for summary judgment, arguing that genuine issues of material fact remain as to Shiver’s liability for abusive litigation.

“ ‘ “To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff.” (Cit.)’ (Emphasis omitted.) Waller v. Transworld Imports, 155 Ga. App. 438, 439 (271 SE2d 1) (1980); Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986).” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (2) (392 SE2d 535).

In the case sub judice, attorney Remler alleged that Shiver abused the litigation process by accelerating litigation, i.e., pressing her claims of fraud, legal malpractice, defamation, violation of the Fair Business Practices Act of 1975 and intentional infliction of emotional distress, after it was determined that the alleged title defects did not present a cloud on Shiver’s claim to the subdivision lots. To this extent, attorney Remler relies on Yost v. Torok, 256 Ga. 92 (344 SE2d 414), wherein it was held that “[a]ny party who shall assert a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or any party who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby.” Yost v. Torok, 256 Ga. 92, 95 (13), 96, supra.

In the case sub judice, the trial court relied on findings of fact contained in the order on Bankers First’s OCGA § 9-15-14 motion for attorney fees and costs of litigation in finding that Shiver’s claims against attorney Remler did not constitute abusive litigation. However, our examination of these findings of fact and the pertinent pleadings and evidentiary material does not authorize a finding that Shiver pierced allegations that Shiver abused litigation by pressing her claims against attorney Remler of legal malpractice, fraud, defamation, violation of the Fair Business Practices Act of 1975 and intentional infliction of emotional distress.

Decided June 27, 1991

Reconsideration denied July 10, 1991

Remler, Koski & Near, Robert C. Koski, for appellant.

Albert N. Remler, pro se.

Brennan & Wasden, Joseph P. Brennan, Kenneth L. Royal, Marvin W. McGahee, for appellee.

The findings of fact entered in response to Bankers First’s OCGA § 9-15-14 motion for attorney fees and costs of litigation support the trial court’s conclusion that Shiver was justified in pressing her claim against Bankers First under warranties of title and may even support a finding that plaintiff was justified in pressing a legal malpractice action against attorney Remler, but these findings of fact do not negate the allegation that Shiver abused the litigation process by asserting claims that attorney Remler committed legal malpractice, fraud and defamation; that he violated the Fair Business Practices Act of 1975 and that he intentionally inflicted emotional distress upon Shiver. On the contrary, we find no evidence piercing the claim that Shiver abused the litigation process by throwing everything except the kitchen sink at attorney Remler. In fact, plaintiff’s own expert did not say that Shiver’s multi-pronged attack on attorney Remler was justified. He only deposed that Shiver was “justified in asserting litigation claims or defenses based on a breach of warranty of title.” ¡Consequently, the trial court erred in granting Shiver’s motion for summary judgment on attorney Remler’s abusive litigation claim. Genuine issues of material fact remain for jury resolution. See Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618).

2. Shiver’s motion for assessment of damages for frivolous appeal is hereby denied.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.

       The record shows that Shiver was a party to a land registration proceeding in which it was determined that Shiver owns the lots which are the basis of the claims in the case sub judice, in “fee simple.” The land registration order is dated September 4, 1987, and. was entered on September 11, 1987.

       Attorney Remler’s answer to the amended complaints and counterclaim was filed after the entry of a pre-trial order. However, the record shows that attorney Remler reserved his right to answer the amended complaints in the pre-trial order and that the trial court gave attorney Remler permission to file the abusive litigation counterclaim after the entry of the pre-trial order.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0615.
    TATE v. BRUNO’S, INC./FOOD MAX.
    (408 SE2d 456)
   Andrews, Judge.

Tate appeals the trial court’s denial of her claim for workers’ compensation benefits under OCGA § 34-9-1 on the basis that her injury did not arise out of and in the course of her employment.

Tate was employed at a Food Max store which was located on one end of a plaza shopping center. The shopping center parking lot, which was adjacent to the Food Max store on one side and was bordered on the other side by a road, was available for both public and employee use.

On October 16, 1989, Tate parked her car close to the street in one of the spaces farthest from the store. She worked her shift, completed her work and clocked out, and walked directly from the Food Max store to her car. She started her car, let it warm up for a few minutes, and began to back out of her parking space. Before she had traveled one car length, a truck collided with her vehicle. Approximately ten minutes elapsed between her clocking out of Food Max and the accident.

Food Max did not own the parking lot in which the accident occurred and did not direct, control or maintain the lot. The parking lot was used by patrons and employees of all the shopping center stores. No specific parking spaces were reserved for Food Max employees, though the employees customarily parked in the lot and Food Max provided no other parking facility for them. The board found that Food Max employees were reasonably expected to use the parking lot and were directed to park farther from the store to allow customers to use the closer parking spaces.

The ALJ denied Tate’s workers’ compensation claim on the basis that the accident was not in the course of her employment. The full board reversed the ALJ, holding that Tate was entitled to the benefits. The superior court reversed the board and denied Tate’s claim for benefits. From this ruling, Tate appeals.

1. In order to determine whether the injury in this case arose out of, or in the course of employment so as to entitle Tate to benefits, it is necessary to examine the two competing applicable principles here. First, there is the general rule that injuries sustained by an employee while going to or from work are not compensable. Corbin v. Liberty Mut. Ins. Co., 117 Ga. App. 823 (162 SE2d 226) (1968). On the other hand, it is well-settled that “[t]he period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises.” (Emphasis supplied.) Knight-Ridder Newspaper &c. v. Desselle, 176 Ga. App. 174, 175 (335 SE2d 458) (1985). The latter rule is “predicated on the rationale that until the employee has actually departed the premises, he has not ‘started traveling a route of (his) choosing wholly disconnected with (his) employment.’ [Cits.]” Southern Bell Tel. &c. Co. v. Conyers Toyota, 190 Ga. App. 792, 793 (380 SE2d 296) (1989).

The intersection of these competing principles has led to the development of an exception to the general rule that going and coming from work is not a compensable event. That carved exception provides that when an employee is injured in, or going to and from, a parking lot which is owned or maintained by the employer, the incident is compensable under workers’ compensation since the injury arose during the employee’s ingress or egress from employment. See, e.g., Federal Ins. Co. v. Coram, 95 Ga. App. 622, 624 (98 SE2d 214) (1957); Labette v. Lister, 192 Ga. App. 464 (385 SE2d 118) (1989).

Providing workers’ compensation coverage for employee injuries in, or going to and from, parking lots which are owned or maintained by the employer, is a logical application of the rule that an injury occurring during working hours on the employer’s premises is a compensable event. See, e.g., Miles v. Brown Transport Corp., 163 Ga. App. 563 (294 SE2d 734) (1982). In Federal Ins. Co., supra, which involved a parking lot injury, this Court explained: “[w]e think this situation is analogous to one where the employee first reports to one part of the employer’s premises for instructions, assignment, clock punching, drawing tools, etc. and then must proceed to another portion of the premises to begin his actual duties.” Federal Ins. Co., supra at 624. In other words, where the parking lot is part of the employer’s premises, then employee injuries which occur in, or going to and from such parking lot, are handled no differently from those which happen in other parts of the work place. See Federal Ins. Co., supra; see generally U. S. Casualty v. Russell, 98 Ga. App. 181 (105 SE2d 378) (1958); Dept. of Human Resources v. Jankowski, 147 Ga. App. 441 (249 SE2d 124) (1978); Knight-Ridder, supra; West Point Pepperell v. McEntire, 150 Ga. App. 728 (258 SE2d 530) (1979).

The rationale which has allowed compensation for injuries which occur in, or going to or coming from, parking lots which are owned, maintained or controlled by the employer does not extend so far as to allow coverage when workers’ compensation benefits are claimed for an injury which occurred in a public parking lot which was neither owned, controlled, nor maintained by the employer. In this situation, the public parking lot is not part of the employer’s premises and the rationale which allowed recovery in Federal Ins. Co., supra, and the cases above, does not apply.

We do not believe that the provisions of OCGA § 34-9-1 were intended to afford compensation to injuries of employees in public parking lots. Therefore, in this situation, we will follow the general rule that injuries sustained en route to or from work are not compensable. See generally Federal Ins. Co. v. Horner, 148 Ga. App. 15 (251 SE2d 26) (1978); Corbin v. Liberty Mut. Ins. Co., supra. The superior court was correct in denying Tate’s claim for benefits.

2. In Tate’s second enumeration of error, she claims that the superior court erred in substituting its findings of fact for the findings of fact of the board. OCGA § 34-9-105. We find that this enumeration of error is without merit.

Judgment affirmed.

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

Decided June 27, 1991

Reconsideration denied July 10, 1991

Dozier, Akin, Lee & Graham, Neal B. Graham, for appellant.

Martin, Snow, Grant & Napier, R. Napier Murphy, for appellee.


author: Banke, Presiding Judge.

text:
    A91A0624.
    LAWLESS v. SASNETT et al.
    (408 SE2d 432)
   Banke, Presiding Judge.

The appellant brought this action against the appellees to recover for personal injuries she allegedly sustained as the result of a fall which occurred on the appellees’ property. She brings this appeal from the grant of the appellees’ motion for summary judgment.

The appellees own and operate several fruit orchards collectively known as S & S Farms. At certain times during the year, the public is permitted access to the property to pick fruit from the trees for purchase. Accompanied by her mother, the appellant visited the appellees’ property for this purpose and was directed to a certain area to pick nectarines. After driving to the location in question, she parked her car and began picking fruit with her mother. As she was walking between the rows of trees, her left leg went into a hole up to the height of her knee, causing her to fall and to sustain multiple fractures to her right ankle. The two women testified on deposition that the area in question was covered with grass which had grown to a height of approximately one foot, obscuring the ground beneath it. The appellant testified that she failed to see the hole even though she was looking down toward the ground out of concern that snakes might be present in the high grass. While the appellant could not state the circumference of the hole, she testified that it was wide enough to enable her “whole foot [to go] in it straight.”

Appellee Richard Sasnett acknowledged that he had been present at the grove at the time of the incident and had directed the appellant to the area where the accident occurred. While he could not remember the last time the grass had been cut in this area prior to the accident, he stated that it was normally done once every ten days to two weeks, on an “as needed” basis. In addition, he stated that paraquat was sprayed every three to four weeks to kill the grass in the areas immediately surrounding the trees where the mower did not reach and that during such spraying his employees would look for holes in the ground. He further testified that he was never able to locate the hole into which the appellant allegedly stepped. Held:

The appellant clearly occupied the status of an invitee upon the appellees’ premises. See generally N. L. Indus. v. Madison, 176 Ga. App. 451 (336 SE2d 574) (1985). “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. “An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. Prosser, Law of Torts (4th ed.) 393, § 61. An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. 2 Restatement of Torts 216, § 343.” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984).

As the appellees in this case deny that they had actual knowledge of the existence of the hole, and as the appellant is unable to controvert their testimony on this point, in order to recover she must prove that they had constructive knowledge of its existence, i.e., that their failure to discover it resulted from a failure to exercise reasonable care in inspecting the premises. See generally Boss v. Food Giant, 193 Ga. App. 434, 436 (388 SE2d 37) (1989). The burden was of course on the appellees, as movants on summary judgment, to negate this theory of liability by presenting evidence that they had in fact exercised reasonable care in inspecting the premises and keeping them safe. We must conclude under the circumstances of this case that the appellees failed to meet this burden. From the appellant’s testimony concerning the size of the hole, a jury would be authorized to infer both that it had been in existence for a substantial period of time and that it was large enough to have been observable during routine mowing and maintenance. Based on the appellant’s testimony that the grass was a foot high at the location in question, a jury might further conclude that the grass needed to be mowed more often than once every ten days to two weeks to prevent it from obscuring such potential hazards. “[W]here an obstruction is in some way hidden, camouflaged or intrinsically unsafe, the question of ordinary care should be one for the jury.” Forde v. C & S Ga. Corp., 178 Ga. App. 400, 403 (343 SE2d 164) (1986). See also Begin v. Ga. Championship Wrestling, supra, 172 Ga. App. at 295. For these reasons, we hold that the trial court erred in granting the appellees’ motion for summary judgment.

Judgment reversed.

Carley and Beasley, JJ., concur.

Decided June 19, 1991

Reconsideration denied July 10, 1991

Westmoreland, Patterson & Moseley, Daryl L. Morton, Thomas H. Hinson II, for appellant.

Chambless, Higdon & Carson, Mary M. Katz, for appellees.


author: Pope, Judge.

text:
    A91A0308.
    FOREMAN v. THE STATE.
    (408 SE2d 178)
   Pope, Judge.

Defendant King Foreman was convicted of possession of cocaine with intent to distribute and appeals. We affirm.

1. Defendant first argues the trial court erred in allowing his character to be placed in issue by the admission of testimony of similar transactions and other bad acts. We find this enumeration to be without merit. Although defendant argues that testimony was impermissibly admitted concerning “previous” drug transactions for which he was not charged, the record shows the only testimony to which he raised an objection related to drug transactions defendant had engaged in on January 2, 1989, the date alleged in the indictment. Clearly this testimony constituted evidence of the offense charged and was thus admissible. See, e.g., Garrett v. State, 188 Ga. App. 176 (2) (372 SE2d 506) (1988); Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987). Likewise, we cannot say that defendant was harmed by references to allegedly stolen property found in the apartment where defendant was arrested because the testimony of the arresting officer established that further investigation failed to reveal that the property was in fact stolen.

2. Defendant contends he is entitled to a new trial based on newly discovered evidence, to wit, the testimony of the manager of the apartments where defendant was apprehended. By definition, newly discovered evidence is evidence “that. . . has come to [the defendant’s] knowledge since the trial . . . .” Lipscomb v. State, 194 Ga. App. 657, 659 (391 SE2d 773) (1990). The transcript from trial and the motion for new trial are replete with evidence that defendant knew about the witness at trial, if not prior to trial. Consequently, and pretermitting whether the defendant made the proper showing as to the other five requirements necessary to secure a new trial on this basis, see, e.g., Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980), defendant is not entitled to a new trial on the basis of newly discovered evidence. “Failure to show one [of the six] requirement [s] is sufficient to deny a motion for a new trial [urged on the basis of newly discovered evidence].” Id. at 491.

3. Defendant also argues that his trial counsel was ineffective because he failed to file certain pre-trial motions, which, defendant argues, could have led to the discovery of the whereabouts of the apartment manager, who could have then testified at trial.

The transcript shows that trial counsel was not subpoenaed and did not testify at the motion for new trial; thus defendant’s argument concerning whether trial counsel would have called the witness to testify at trial is mere conjecture. This court has repeatedly held that “ ‘[t]rial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. (Cits.)’ Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987). ‘The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985). [Defendant] did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, [defendant] made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.” Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990). See also Harris v. State, 198 Ga. App. 503 (402 SE2d 62) (1991); McCarthy v. State, 196 Ga. App. 839, 841 (4) (397 SE2d 178) (1990); Allsop v. State, 196 Ga. App. 379, 381-382 (396 SE2d 47) (1990); Balduf v. State, 190 Ga. App. 233 (378 SE2d 409) (1989). “Although arguendo [defendant’s] representation may have been less than perfect, there is no indication in the record that the conduct of [his] counsel met the Strickland [v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)] criteria denoting ineffective assistance. A defendant is entitled not to perfect representation but to ‘reasonably effective assistance.’ See Gabler v. State, 177 Ga. App. 3, 6 (338 SE2d 469) (1985). The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. Griner v. State, 192 Ga. App. 283 (384 SE2d 398) (1990).” Anderson v. State, 197 Ga. App. 54, 55 (397 SE2d 557) (1990). “ ‘ “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. (Cit.) The trial court’s finding in the instant case is not clearly erroneous. . . .” ’ ” Harris v. State, supra at 503. Accord Powell v. State, 198 Ga. App. 509 (1) (402 SE2d 108) (1991).

4. Contrary to defendant’s final enumeration of error on appeal, the evidence was sufficient to authorize a rational trier of fact to find him guilty beyond a reasonable doubt of the crime charged.

Decided July 10, 1991.

Debra B. Randall, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A91A0536.
    VICTORIA’S SECRET STORES, INC. v. WEST.
    (408 SE2d 180)
   Banke, Presiding Judge.

This is a personal injury action, filed against the appellant by the appellee in the State Court of Fulton County. The case is before us on interlocutory appeal from the denial of the appellant’s motion to require the appellee’s counsel, Gordon L. Joyner, to withdraw from the case on the ground that he is a Fulton County Commissioner and is therefore empowered to vote on salary supplements for the judges of the State Court of Fulton County. See OCGA § 15-7-22. The appellant contends that under these circumstances, Joyner’s representation of the appellee in the present case violates Canon 9 of the Code of Professional Responsibility, which specifies that “[a] lawyer should avoid even the appearance of professional impropriety.” During the proceedings below, Joyner asserted without contradiction that he has elected in the past to abstain from voting on the compensation of state court judges, and he further asserted that such “will continue to be [his] consistent policy and practice during his tenure as a Fulton County Commissioner so as to avoid even any appearance of impropriety or conflict of interest regarding such matters.” Held:

1. In support of its position that disqualification is required in this case, the appellant relies on Young v. Champion, 142 Ga. App. 687 (1) (236 SE2d 783) (1977), wherein we upheld the disqualification of an attorney from practicing before the Recorder’s Court of the City of Albany on the ground that the attorney was a member of the city commission which hired the judges of that court. We concluded that under these circumstances, “the judge did not err in disqualifying the . . . attorney from representing a client before his court, and in fact had a duty to do so, inasmuch as the judge had determined that such representation brought or tended to bring disrepute upon the administration of justice and the practice of law before his court.” Id. at 690. In reaching this decision, this court observed that there was an appearance that “some inchoate influence was present in the case [as] manifested by the fact that the judge did not immediately disqualify the appellant, but made conscientious efforts to recuse himself and obtain another judge pro tern., so as to accommodate the desires of the appellant.”

Decided July 10, 1991.

Murray, Temple & Dinges, Malcolm S. Murray, William D. Strickland, for appellant.

Joyner & Joyner, Gordon L. Joyner, for appellee.

It is apparent that the Fulton County Commissioners have no say in the selection or removal of state court judges but are empowered only to vote on salary supplements for such judges, a power which, as previously indicated, the appellee’s counsel has chosen to abstain from exercising. Under these circumstances, the employer-employee relationship which was found to exist between the governing body and the judge in Young clearly is not present. Moreover, whereas a prohibition against practicing before a recorder’s court would not normally be considered a significant restriction on an attorney’s ability to practice law generally, a prohibition against representing clients before the state and/or superior courts of the county of an attorney’s residence obviously would constitute a major impediment to his right to practice law generally. Compare Ga. Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (291 SE2d 524) (1982) (holding that the Georgia Constitution prohibits legislators from representing clients for a fee in civil proceedings in which the state or one of its agencies is an opposing party).

“[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981). “Political influence exists, and will continue to do so; this is a fact of life. Although this court can correct errors of law, like them or not we cannot change the facts of life.” Ga. State Bd. of Pharmacy v. Lovvorn, 255 Ga. 259, 260 (336 SE2d 238) (1985). Based on the foregoing considerations, we hold that the trial judge in the present case did not abuse his discretion in refusing to disqualify the appellee’s counsel from participating in the present case because of his status as a county commissioner.

2. The appellee’s motion for imposition of damages against the appellant for filing a frivolous appeal is denied.

Judgment affirmed.

Carley and Beasley, JJ., concur in judgment only.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    A91A0555.
    JOHNSON v. THE STATE. VARNADOE v. THE STATE.
    A91A0557.
    (408 SE2d 133)
   Banke, Presiding Judge.

Pursuant to an agreement negotiated with the state’s attorney, the appellants in these two companion cases each pled guilty to two counts of violating the Georgia Controlled Substances Act. It was agreed in each case that a fine would be imposed in an amount to be determined by the trial court and that the state would recommend a four-year sentence, to be served on probation. The trial court sentenced each appellant to two concurrent four-year terms, with the sentences to be probated upon payment of a $2,500 fine on Count 1 and a $1,000 fine on Count 2. The probation was also conditioned upon their payment of certain contributions, assessments, and probation fees and upon their performance of 300 hours of community service. The appellants contend on appeal that the trial court erred in imposing such a sentence without first conducting an inquiry and making a determination on their ability to pay the specified sums. Held:

Although the state contends that the fines were payable in installments over the four-year period of probation, no such language appears in the sentencing orders, which, by their terms, simply condition the appellants’ probation upon payment of the specified sums. Nor did the trial court discuss the manner of payment during the sentencing hearing. Under these circumstances, it is unclear whether the payment of the fines was intended to be a condition precedent to the probation of the four-year sentences. It is well settled that the payment of a fine cannot be made a condition of probation without first conducting a hearing in accordance with Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983) to determine the defendant’s ability to pay. See Eason v. State, 194 Ga. App. 678 (4) (391 SE2d 427) (1990), reversed on other grounds, 260 Ga. 445 (396 SE2d 492) (1990). See also Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984); Gaither v. Inman, 253 Ga. 484 (322 SE2d 242) (1984); Day v. State, 188 Ga. App. 648 (10) (374 SE2d 87) (1988). Compare Ludden v. State, 176 Ga. App. 109 (4) (335 SE2d 428) (1985). Accordingly, the appellants’ sentences are vacated, and the cases are remanded with direction either that such a hearing be held or that the sentences be amended to clarify that the payment of the fines is not a condition precedent to the commencement of the probation.

Judgment vacated with direction.

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

Decided June 24, 1991

Reconsideration denied July 11, 1991

Larsen & Larsen, W. Washington Larsen, Jr., for appellants.

James L. Wiggins, District Attorney, for appellee.

Beasley, Judge,

dissenting.

I respectfully dissent because the sentences show that the fines and other payments as well as community service and other behavioral directives were imposed as terms of the probation in that they were to be paid and followed during probation. The fines were not made conditions precedent to probation. Probation was not conditioned upon the fines first being paid. The sentence should be read to conform to the law, not the opposite.

This is reinforced by the sentencing hearing, wherein the court accepted the pleas as negotiated. Defendants are not now faced with the alternative of incarceration for non-payment of the fines in toto.

A Bearden hearing is required only when the fine is made a condition precedent of probation or probation is about to be revoked for failure to pay the fine. Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984). Neither circumstance is present here.

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

        Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983).


text:
    A91A0692.
    BOWMAN v. PARROTT.
    (408 SE2d 115)
   Pope, Judge.

This appeal arises from the trial court’s decision overturning the third suspension of Petitioner/appellee Timothy Dean Parrott’s Georgia driver’s license by Respondent/appellant Ronald L. Bowman, Commissioner of the Georgia Department of Public Safety (Commissioner). Pursuant to OCGA § 40-5-57, the Commissioner suspended Parrott’s Georgia driver’s license three times during the period from November 1986 to June 1989. OCGA § 40-5-57 establishes a “point system” for moving violations of traffic regulations governing motor vehicles. That statute requires the Commissioner to “suspend the driver’s license of any person who has accumulated a violation point count of 15 or more points in any consecutive 24 month period, as measured from the dates of previous arrests for which convictions were obtained to the date of the most current arrest for which a conviction is obtained.” OCGA § 40-5-57 (c) (1) (B). The initial suspension of Parrott’s driver’s license in November 1986 is not contested in this case. The second and third suspensions of Parrott’s driver’s license resulted from the accumulation of 32 points during the 24-month period beginning on March 3, 1987. The second suspension occurred on June 3, 1989. The third suspension occurred on June 10, 1989. Parrott appealed the third suspension of his driver’s license to the Superior Court of Fulton County pursuant to OCGA § 40-5-66.

In his brief in support of his appeal, Parrott argued inter alia that because OCGA § 40-5-57 (c) (1) (B) contemplates that a driver could accumulate more than the minimum 15 points required for suspension of a driver’s license during a 24-month period, that statute only provides for one suspension for any violations occurring within the same 24-month period. Without holding a hearing or other proceeding, the superior court issued an order adopting the interpretation of OCGA § 40-5-57 (c) (1) (B) urged by Parrott and overturning the Commissioner’s third suspension of Parrott’s driver’s license. This court granted the application for discretionary review of the superior court’s order filed by the Commissioner.

1. We disagree with the superior court’s interpretation of OCGA § 40-5-57 (c) (1) (B). In order to determine the intent of the Georgia legislature when it enacted that statute, the statutory scheme governing driver’s license revocation must be considered as a whole. Hardison v. Booker, 179 Ga. App. 693 (4) (347 SE2d 681) (1986). In June 1989, when the Commissioner issued the second and third suspensions of Parrott’s driver’s license, a related statute, OCGA § 40-5-57.1 (a), provided for the periods of suspension of a Georgia driver’s license for accumulation of the “requisite points,” i.e., 15 or more points. That statute states in pertinent part that when a driver has been assessed the requisite points three times during a five-year period, which period shall be “measured from the dates of previous arrests for which convictions were obtained to the date of the most current arrest for which a conviction is obtained, such person shall be considered a habitual violator, and his license shall be revoked as provided for in paragraph (1) of subsection (a) of Code Section 40-5-62 [five years from the date the person surrenders his driver’s license after conviction of the offense for which the person is declared a habitual offender].” OCGA § 40-5-57.1 (a) (3).

The revocation period for a third assessment is two years longer than the revocation period established for the second assessment of the requisite points. OCGA § 40-5-57.1 (a) (2) and (3). Thus, OCGA § 40-5-57.1 (a) (3) not only clearly contemplates that a driver’s license can be suspended at least three times during a five-year period, but establishes a longer period of revocation for the third assessment of the requisite points. Under the trial court’s interpretation of OCGA § 40-5-57 (c) (1) (B), the provisions of OCGA § 40-5-57.1 (a) (3) would be rendered moot. It would be impossible for any driver to have his license suspended more than twice during a five-year (60-month) period if all points assessed during any 24-month period could only result in one suspension.

When the language in question is construed in light of the statutory scheme of license suspension as a whole, it is clear that the Georgia legislature simply intended to establish a minimum number of points that a driver had to accumulate during a 24-month period before his driver’s license could be suspended. Any other interpretation of OCGA § 40-5-57 (c) (1) (B) would not only render certain related statutes moot, but would be contrary to the Georgia legislature’s express purpose underlying the statutory scheme of license suspension and revocation of removing dangerous and negligent drivers from the highways of the State. OCGA § 40-5-57 (a). A person who is assessed with more than 30 points for moving violations of the laws governing motor vehicles poses no less a danger on the State highways simply because he accumulated all of those points within the same 24-month period.

2. In his remaining enumeration, the Commissioner contends that the superior court erred in failing to conduct a hearing or otherwise affording the Commissioner an opportunity to be heard prior to entry of judgment. OCGA § 9-10-2 provides as follows: “Any verdict, decision, judgment, decree, order, ruling, or other judicial action by any court in this state in any matter in which this state or an official of this state in his official capacity is a party defendant, intervenor, respondent, appellee, or plaintiff in fi. fa. shall be void unless it affirmatively appears as a matter of record either: (1) That the Attorney General was given five days’ advance written notice by the adverse party or his attorney of the time set for the particular trial, hearing, or other proceeding as a result of which the verdict, decision, judgment, decree, order, ruling, or other judicial action was entered; or (2) That the Attorney General or an assistant attorney general was present in person at the trial, hearing, or other proceeding; or (3) That the Attorney General or an assistant attorney general has, in writing, waived the notice.” (Indentions omitted.)

The record reveals that the superior court did not conduct a hearing or other proceeding before issuing its final order in this case. OCGA § 40-5-66 provides for appeals from the decisions of the Department of Public Safety by the aggrieved person. That statute contemplates that the superior court shall conduct a de novo hearing before entering its order concerning that matter. OCGA § 5-3-29, which sets forth the scope of de novo investigations by the superior court on appeals, provides that “[ejither party is entitled to be heard on the whole merits of the case.” Although the superior court is not required to conduct a hearing concerning the merits of the Department of Public Safety’s decision to revoke the license of the aggrieved party if the parties waive their right to be heard, the superior court cannot avoid the dictates of OCGA §§ 5-3-29 and 9-10-2 by simply failing to hold a hearing. See generally Cofer v. Williams, 141 Ga. App. 72 (232 SE2d 610) (1977); State v. Chiles, 129 Ga. App. 645 (200 SE2d 501) (1973). For the foregoing reasons, the judgment of the superior court in this case is not sustainable. This case is remanded to the superior court for further consideration consistent with this opinion.

Decided May 23, 1991

Reconsideration denied July 11, 1991

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Eddie Snelling, Jr., Neal B. Childers, Assistant Attorneys General, for appellant.

Janet G. Scott, for appellee.

Judgment reversed and case remanded with direction.

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

       Ga. L. 1990, p. 2048, § 4 repealed OCGA § 40-5-57.1 and redesignated its provisions as subsections (d), (e) and (f) of OCGA § 40-5-57, effective January 1, 1991.


text:
    A91A0627.
    TUCKER et al. v. LOVE et al.
    (408 SE2d 182)
   Pope, Judge.

Plaintiffs brought this wrongful death action after a bus driven by defendant Bobby Love and owned and operated by defendant Metropolitan Atlanta Rapid Transit Authority (MARTA) struck and killed their minor daughter. The jury returned a verdict for defendant Love and the trial court entered judgment in favor of both defendants. Plaintiffs appeal.

1. Relying on Fountain v. Thompson, 252 Ga. 256 (312 SE2d 788) (1984), plaintiffs first enumerate as error the trial court’s failure to charge the jury, upon written request, that a driver of a vehicle, in addition to exercising ordinary care to avoid colliding with pedestrians, is also under a duty and obligation to discover the presence of pedestrians in the roadway. The evidence presented at trial showed plaintiffs’ decedent was hit by the MARTA bus as it was pulling away from a bus stop after discharging a passenger. At the time of the accident, it was raining extremely hard and visibility was impaired. According to eyewitness accounts, the victim, who was standing on the opposite side of the street, ran into the street after the bus began to move forward. The victim, running diagonally across the street, approached the bus at an angle to the left of the bus; she had a coat over her head to shield her from the rain. Witnesses testified the victim did not look before she ran into the street and that she failed to hear the warning cries of her companions as she ran in front of the bus. Defendant Love testified he looked to his right and “as far as he could see to the left,” that he looked in his left mirror and at “everything around him” before pulling away from the bus stop. Love said he applied his brakes and blew his horn when he saw the victim but that he was unable to avoid hitting her as she ran in front of the bus. Other witnesses also testified that there was nothing Love could have done to avoid hitting the victim.

“In Fountain, the Supreme Court ruled that [OCGA § 40-6-93] ‘establishes that motorists on the highways must exercise ordinary care to discover and avoid persons in the roadway. . . .’ (Emphasis supplied.) Id. at 257. It held that a person lying prone in the highway in a drunken condition is owed a duty of care under OCGA § 40-6-93 when he is lying in the open on a flat road, even though undiscovered. This was because, under the circumstances of plaintiff’s repose on the roadway, and the roadway’s configuration at that junction, the driver ‘could have seen’ and ‘should have seen’ the victim, so the jury could find that he was negligent ‘in failing to discover’ Fountain in time to avoid killing him.” Johnson v. Ellis, 179 Ga. App. 343, 344-345 (346 SE2d 119) (1986).

However, this case is readily distinguishable from the situation in Fountain and is factually more akin to Johnson. Here the victim did not enter the roadway until the bus had started to move forward after discharging its passenger. Even if the victim entered the highway simultaneously with the bus, she was not lying prone in the highway when the collision occurred, as was the victim in Fountain, but rather was in the process of running across the street. Moreover, the victim here entered the street to the side of, and not in front of, the moving bus. Thus in this case, as in Johnson v. Ellis, supra, “[t]here is no evidence whatsoever that defendant [Love] could have, or should have, seen [the victim running] into a collision path with [the vehicle].” Id. at 345. Under these circumstances, we find no merit to plaintiffs’ contention that the trial court committed reversible error by failing to charge the jury that defendant Love had a duty to discover the victim in the roadway.

2. Plaintiffs also contend the trial court erred in entering judgment on the jury verdict because the verdict was contrary to the evidence and law. “We disagree. The obligation to weigh the evidence and to determine witness credibility rests with the jury. ‘This court considers only the sufficiency of the evidence. . . .' Parr v. Pinson, 182 Ga. App. 707 (1) (356 SE2d 740) [(1987)]. On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict, we will uphold the judgment. [Cit.] Applying these principles to the case sub judice, we find ample support in the record for the jury’s verdict.” Ailion v. Wade, 190 Ga. App. 151, 155 (4) (378 SE2d 507) (1989).

3. Lastly, plaintiffs argue that the trial court erred when it entered judgment for both defendants, because the jury returned a verdict only for defendant Love. First we note that contrary to plaintiffs’ argument on appeal, defendant MARTA’s liability in this case, if any, was derivative, not direct. In other words, MARTA could only be held liable to plaintiffs if the jury found the victim’s injuries and death were caused by the negligence of MARTA’s employee, defendant Love. Thus the trial court was authorized to enter judgment in favor of both defendants, based on the jury’s verdict finding in favor of the defendant employee. See ESAB Distrib. Southeast v. Flamex Indus., 243 Ga. 355 (1) (254 SE2d 328) (1979); see also NEDA Constr. Co. v. Jenkins, 137 Ga. App. 344 (2) (223 SE2d 732) (1976).

Moreover, we also hold that plaintiffs waived their objection to the form of the jury’s verdict. The transcript shows the trial court inquired as to whether the parties had any objection to the form of the verdict, and plaintiffs’ attorney responded “I don’t think so, your Honor.” The trial court then admonished counsel to make sure there was no objection to the form of the verdict prior to the publication of the verdict. Again, after the verdict was published, the court inquired if there was any reason why the jury should not be dismissed and plaintiffs’ attorney responded, “No sir.”

“Neither party objected to the verdict when it was returned by the jury. At that time the meaning and effect of the verdict must have been clear to the parties. If either party felt the verdict was vague and ambiguous, objection should have been made when the verdict was returned so that the jury could clarify its meaning. [Cits.] A verdict which is not as specific as it could be but which is capable of being reduced to judgment will not be set aside on appeal where no timely objection was made thereto. [Cit.] Upon hearing an imprecise verdict rendered a litigant should not sit silently by, hoping to gain a retrial by failing to object. [Cit.]” Todhunter v. Price, 248 Ga. 411, 412-413 (1) (283 SE2d 864) (1981). Accord Fort &c. Enterprises v. Scrocca, 195 Ga. App. 554 (3) (394 SE2d 364) (1990); Harley-Davidson Motor Co. v. Daniel, 149 Ga. App. 120 (3) (253 SE2d 783) (1979).

Judgment affirmed.

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

Decided July 11, 1991.

Daniel T. Donohue, for appellants.

Chambers, Mabry McClelland & Brooks, Walter B. McClelland, for appellees.


author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A0727.
    ALEXANDER v. THE STATE.
    (408 SE2d 485)
   Birdsong, Presiding Judge.

Eddie Lewis Alexander was convicted of one count of aggravated assault with intent to rob and two counts of armed robbery. He appeals the judgment of conviction and sentence. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). In this light, review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts the judgment should be reversed because of improper jury conduct. On the second day of trial, a juror brought a map to court, a “Gosh Check Chart Georgia Road Map.” The bailiff took the map from the juror in the hallway before the jurors entered the jury room. Thereafter, the jurors requested a Georgia map; appellant’s counsel objected and the trial court denied the request of the jury. Several minutes later, appellant’s counsel made a specific objection to the juror’s improper conduct by “bringing a map that’s not in evidence.”

At no point during trial did appellant’s counsel make a motion for mistrial, request any form of curative instruction to the effect that information from the map would not be discussed or considered during jury deliberation, or request that an inquiry be made of the jurors regarding whether they had seen or discussed the contents of the map. The record also reflects appellant made no assertion at trial that the map was outdated, materially inaccurate, or contained information substantially different from that found in standard road maps.

This is not a case where jurors visited the crime scene (see, e.g., Maxwell v. State, 170 Ga. App. 831 (5) (318 SE2d 650)), nor a case where the record discloses one juror has sought affirmatively to sway other jurors by relating personal observations (Bobo v. State, 254 Ga. 146 (1) (327 SE2d 208)). In fact, this is not a case where a juror physically introduced a map into the jury room to aid the jury to evaluate certain testimony (People v. Martinez, 147 Cal. Rep. 208 (CA 5th Dist. Calif.) (failure of judge to voir dire jury about use of maps not fatal)).

Assuming arguendo appellant made a timely objection on the grounds of juror misconduct (but compare Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314)), and that the facts before us normally would trigger a presumption of prejudice (Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695)), rather than involving inconsequential irregularities by merely providing an “irregularity without opportunity for injury” by possession of a Georgia map not admitted at trial (Smith v. State, 218 Ga. 216, 223 (2 (c) (3)) (126 SE2d 789)), it remains to be determined whether in the case at bar reversal is mandated. We conclude it is not. For reasons hereinafter discussed this case is distinguishable from Evans v. State, 196 Ga. App. 1 (395 SE2d 342).

Although at trial appellant indicated his approval for the jury to view the map, nevertheless, his counsel maintained an objection to the juror’s possession of the map. The relief appellant now seeks on appeal in regard to this enumerated error is tantamount to the relief he could have received from the trial court by entering a timely motion for mistrial. It is well established that in no case will a trial judge’s ruling be reversed for not going further than requested. Zellner v. State, 260 Ga. 749, 750 (3b) (399 SE2d 206) (no motion for mistrial made or curative instruction requested following objection); see Cooper v. State, 260 Ga. 549, 550, n. 2 (397 SE2d 705). We find this rule dispositive of the issue before us. Moreover, examining the record in its entirety, we conclude appellant’s counsel elected not to tender a mistrial motion or to seek clarification of the true magnitude of the jurors’ conduct in an attempt to gain the strategic benefit of allowing the case to go to the jury where an acquittal might be obtained and yet, by means of a belated bare objection, preserving an error which would give rise to a presumption of prejudice and anticipated automatic case reversal. Appellant’s counsel, by his own trial strategy and in the face of appellant’s express desire on the record to let the map to to the jury, has directly aided in formulation of the posture of this appellate record. One cannot complain of a judgment, order, ruling, or result he has procured or aided in causing by his own trial strategy, trial tactics, or conduct. Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251). Accordingly, case reversal is not an appropriate remedy, and no requirement exists to remand this case for further inquiry (compare Slaughter v. State, 199 Ga. App. 695 (405 SE2d 897) (1991) (physical precedent only)).

Judgment affirmed.

Cooper, J., concurs. Pope, J., concurs spe dally.

Decided July 11, 1991.

Hillman J. Toombs, for appellant.

Robert E. Keller, Distrid Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Pope, Judge,

concurring specially.

I concur in the majority’s decision to affirm the denial of defendant’s motion for retrial, but not for the reasons, as given in the majority opinion, that defendant failed to tender a motion for mistrial or failed to show the juror’s conduct was prejudicial.

It is true that defendant’s attorney did not move for mistrial. He did, however, object to the juror’s “bringing a map that’s not in evidence ... to the jury room. ...” After the verdict was returned, defendant filed a motion for new trial, based in part on the alleged improper conduct of the juror. If the record had shown the irregularity in conduct of which the defendant complained, then I believe the defendant’s objection would have properly preserved his right to appeal from the trial court’s denial of his motion for new trial. “There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990) (quoting Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986)).

If the defendant had, indeed, raised an issue of improper conduct, then the burden was not on defendant to show prejudice, but was upon the prosecution to rebut the presumption of prejudice. Here, however, the objection was to the juror’s bringing the map into the jury room. The record reflects the juror did not bring the map into the jury room but that it was taken from the juror by the bailiff before the jury retired to the jury room. Defendant did not raise an objection to the juror’s possession of the map or referral to the map, which is not shown by the record, anyway. The record thus shows no irregularity from which a presumption of prejudice would be based.


author: Sognier, Chief Judge.

text:
    A91A0761.
    NICHOLSON v. THE STATE.
    (408 SE2d 487)
   Sognier, Chief Judge.

Rodney Nicholson was found guilty by a jury of armed robbery, and he appeals from the judgment and sentence entered on the jury’s verdict.

1. In his first two enumerations appellant contends the trial court erred by denying his motions for a directed verdict of acquittal and a new trial, made on the ground that the State had failed to prove that the robbery had been accomplished “by use of an offensive weapon” as required by OCGA § 16-8-41 (a). We find no merit in this contention.

The victim, who managed a movie theater complex, testified that some time after 11:00 p.m. on September 9, 1989, he left the theater carrying a bank bag containing over $200 and walked toward his car, which was in the adjacent parking lot. He heard a voice and turned to see a black man about six feet tall and wearing a navy blue jogging outfit, who demanded the victim throw him the bank bag. The victim demonstrated to the jury the manner in which the robber was holding his hand away from his body but did not describe that manner verbally. The victim testified, however, that he believed the robber had a gun and that the robber told him to “do as I say or I’ll blow your head off.” The victim identified appellant as the man who robbed him.

OCGA § 16-8-41 provides that “[a] person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” We cannot agree with appellant that Johnson v. State, 195 Ga. App. 56 (392 SE2d 280) (1990), relied on by the trial court in denying appellant’s motions, requires both that the victim’s apprehension that an offensive weapon is being used be reasonable and that such apprehension be based on a demonstrable physical manifestation of a weapon, in order to support a charge or a conviction for the offense of armed robbery.

We held in Johnson that “[t]he statute includes concealed offensive weapons provided there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred. [Cit.] The question is whether the defendant’s acts created a ‘reasonable apprehension on the part of the victim that an offensive weapon (was) being used,’ regardless of whether the victim actually saw the weapon. [Cit.]” (Emphasis supplied.) Id. at 57 (1) (a). Here, as in Johnson, that requirement was satisfied by the victim’s testimony regarding the robber’s statement, and consequently we find no error in the trial court’s denial of appellant’s motions for a directed verdict of acquittal or for a new trial.

2. On cross-examination, appellant’s counsel asked the victim: “[h]aving decided that [appellant] is in fact the man who robbed you, you’re going to do your level best to see that he’s convicted, aren’t you?” The question was objected to as “argumentative and improper” and the State’s objection was sustained. Appellant maintains the trial court deprived him of a thorough and sifting cross-examination by sustaining the objection, as he was seeking to explore the witness’ bias for impeachment purposes. In support of his contention, appellant cites Glover v. State, 15 Ga. App. 44, 54-55 (6) (82 SE 602) (1914), in which this court stated that “ ‘[i]t has been frequently held that a party may prove anything which might in the slightest degree affect the credit of an opposing witness.’ [Cits.]” In Glover, however, the bias of the witness permitted to be explored was against a person who was not the defendant in that case and was based on a matter independent of the prosecution. In the case sub judice, the “bias” sought to be revealed was that of the witness against the defendant, and appellant failed to show that the alleged “bias” derived from anything other than the victim’s belief that appellant committed the crime. Thus, the answer to the question posed “would not have served ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ [Cits.]” Hamilton v. State, 184 Ga. App. 143, 145 (361 SE2d 30) (1987). Consequently, the trial court did not err by sustaining the State’s objection. Id.

Decided July 11, 1991.

Daniel C. B. Levy, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Grover W. Hudgins, Janis C. Gordon, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0789.
    SUPERIOR INSURANCE COMPANY v. WHITLOW.
    (408 SE2d 489)
   Sognier, Chief Judge.

Wayne C. Whitlow, as executor of the estate of Mary Shepard, brought suit against Superior Insurance Company to recover no fault funeral benefits under a policy of automobile insurance issued to his decedent’s husband. The trial court denied the insurance company’s motion for summary judgment but certified the order for immediate review, and we granted the interlocutory appeal.

The record reveals that Mary Shepard died in a collision while a passenger in an automobile owned and driven by Virginia Huguley. The Huguley car was insured by Georgia Farm Bureau Mutual Insurance Company under a policy providing the basic PIP coverage required by OCGA § 33-34-4 (a) (2), including a maximum funeral benefit of $1,500. See OCGA § 33-34-4 (a) (2) (D). Georgia Farm Bureau paid the estate the $1,500 no fault funeral benefit pursuant to the Huguley policy. Because Shepard’s estate had incurred expenses for her funeral in an amount in excess of $5,000, however, appellee, as executor of the estate, sought to cover some of the remaining funeral expenses by stacking onto the Georgia Farm Bureau benefit the $1,500 funeral benefit provided under a policy of automobile insurance issued by appellant to the decedent’s husband. Appellant’s refusal to pay the claim, and its subsequent motion for summary judgment, was based on its determination that Cannon v. Lardner, 258 Ga. 332 (368 SE2d 730) (1988), prohibited stacking the two funeral benefits in this case.

Decided July 11, 1991.

Eason, Kennedy & Associates, Carolyn J. Kennedy, Richard B. Eason, Jr., for appellant.

Stokes & Associates, Fred J. Stokes, for appellee.

We agree and reverse. We find that this case is controlled by Cannon, supra, as urged by appellant, as well as by this court’s decisions in Slack v. Superior Ins. Co., 198 Ga. App. 281 (401 SE2d 307) (1991); Georgia American Ins. Co. v. Burnsed, 196 Ga. App. 626 (396 SE2d 793) (1990), and Capes v. Bretz, 195 Ga. App. 467, 468 (1) (393 SE2d 702) (1990). “In Cannon, the Supreme Court held that ‘OCGA § 33-34-4 (c) authorizes the cumulation of coverages (“stacking”) up to a total sum of $5,000. However, (the claimant) cannot cumulate coverage under any policy without being an “insured” under that policy, as defined by OCGA § 33-34-4 (c). Because (the claimant [in Cannon]) was not an “insured” under her father’s policy with respect to this collision, she is eligible for no economic benefits under it.’ . . . [Cit.] Similarly, in the case sub judice, [appellee’s decedent, Shepard] is not an ‘insured’ under [her husband’s] policy because the vehicle [in which she was a passenger] was covered under [Huguley’s] policy and was thus ‘similarly insured’ under the construction of OCGA § 33-34-4 (c) given in Cannon, supra at 333-334 (3).” Slack, supra. Accordingly, the trial court erred by denying appellant’s motion for summary judgment. See Burnsed, supra at 627.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0822.
    BUCHANAN v. THE STATE.
    (408 SE2d 721)
   Sognier, Chief Judge.

Appellant was indicted on charges of possession of cocaine, obstruction of a police officer, and criminal interference with government property. He was convicted by a jury of all three charges, and he appeals from the judgment and sentence entered thereon.

1. Appellant contends the trial court erred by failing to hold a hearing on his motion to suppress evidence, which he filed pro se prior to appointment of counsel. Pretermitting the merits of such a motion, we address the issue enumerated, which is the trial court’s failure to hold an evidentiary hearing on the motion to suppress.

Our examination of the record does reveal a pro se motion captioned “Motion to Suppress Evidence Under Due Process of the Law.” However, that motion in its entirety consists of the following: “Here comes the defendant in the above-styled matter and respectfully moves this Honorable Court to submit all evidence, and all witnesses, against the above-named defendant, on this 31st day of July 1990.” A motion to suppress evidence illegally seized must comply with OCGA § 17-5-30, which provides, inter alia, that the motion must “state facts showing that the search and seizure were unlawful.” Id. at (b). Thus, even were we to construe appellant’s motion as one to suppress evidence, it failed to state any facts showing the search and seizure were unlawful and thus the trial court did not err by failing to hold an evidentiary hearing on the motion. See Martin v. State, 195 Ga. App. 548, 550 (3) (394 SE2d 551) (1990).

2. Appellant asserts that his appointed counsel was ineffective. Although the Supreme Court has, in a series of cases, remanded claims of ineffectiveness of counsel to the trial court when that issue was first raised on appeal, so as to avoid later habeas corpus petitions on that issue, see Lloyd v. State, 258 Ga. 645, n. 1 (373 SE2d 1) (1988), in reviewing claims of ineffectiveness of counsel that court has required that we consider whether the issue of ineffectiveness was raised by the new counsel “at the earliest practicable moment.” Thompson v. State, 257 Ga. 386, 388 (359 SE2d 664) (1987).

In the case sub judice, appellant’s present counsel filed the instant notice of appeal during the time within which a motion for new trial would have been appropriate but did not file a motion for new trial, in the context of which a claim of ineffectiveness of trial counsel could have been heard by the trial court. Given that present counsel could have filed a motion for new trial instead of filing the appeal (thus guaranteeing that the ineffectiveness claim would be heard by the trial court) but chose not to, we find the claim has been waived. “Currently, the rule appears ... to be that [under these circumstances,] a challenge to the effectiveness of trial counsel will not be considered on appeal where it has not been raised in the trial court in such a manner as to enable the court to rule on it.” Huff v. State, 191 Ga. App. 476, 477 (382 SE2d 183) (1989).

Decided July 11, 1991.

William E. Frey, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       We note, however, that the evidence in question consists of two rocks of cocaine found in appellant’s coat pocket during a search of his person after arrest. Appellant does not contend his arrest was unlawful, and it is well established that “a search or seizure incident to a lawful arrest is a legal search. [Cit.]” Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385) (1990).


text:
    A91A0142.
    CITY OF LaGRANGE v. TROUP COUNTY ELECTRIC MEMBERSHIP CORPORATION.
    (408 SE2d 708)
   Pope, Judge.

Plaintiff/appellant City of LaGrange, Georgia, appeals the trial court’s grant of defendant/appellee Troup County Electric Membership Corporation’s (Troup EMC) motion for summary judgment and the trial court’s denial of its motion for summary judgment.

Both the City and Troup EMC are electrical suppliers within the meaning of the Georgia Territorial Electric Service Act (the Act), OCGA § 46-3-1 et seq. The City is the primary supplier of electrical services within the corporate limits of LaGrange, and Troup EMC is a secondary supplier of electrical services there, as those terms are defined in the Act. OCGA § 46-3-3.

On or about December 23, 1975, the Mayor and the City Council of the City of LaGrange adopted the ordinance in question, which is currently codified as Section 30-1-17 (E) of the Code of the City of LaGrange. Section 30-1-17 classifies all businesses, professions, trades or callings for license and tax purposes and imposes a certain license fee or tax on all such businesses, professions, trades or callings. Subsection (E) currently provides as follows: “Electric services — Establishments engaged in the generation, transmission and/or distribution of electric energy for sale to premises in the city shall pay an amount equal to four (4) per cent of the gross sales of electricity to all customers serviced by each supplier within the corporate limits of the city for the preceding calendar year, as provided in and authorized by the Georgia Territorial Electric Service Act (Georgia Laws 1973, page 200, as amended).”

Shortly before adopting the ordinance, the City entered into a franchise agreement with Georgia Power Company, the only other secondary supplier of electricity within the corporate limits of LaGrange, in which Georgia Power agreed to pay four percent of the gross sales of electricity to all of its customers to the City as a franchise fee beginning in March 1976. The City requested payment of the fee authorized by the ordinance from Troup EMC by letter dated January 8, 1976. After several letters between counsel for the parties, the City was informed that Troup EMC refused to pay the fee. The undisputed evidence shows that while there was limited oral discussion about this fee between the Manager of Troup EMC and the City Manager thereafter, the City did not make additional formal demands. Troup EMC maintains that the fee is not authorized by the Act, as the ordinance purports on its face, and that the City has no authority to collect such fees from it. In its amended complaint, the City sought $235,398.71, plus interest thereon, from Troup EMC as fees due from 1979 through 1987.

1. The City contends that the trial court erred in concluding that in order for the City to collect a franchise fee from Troup EMC there must be a franchise agreement or contract between the parties and that there was no express or implied agreement to that effect between the parties. In support of its argument the City relies upon this court’s decision in Tri-State Elec. &c. v. City of Blue Ridge, 88 Ga. App. 717 (77 SE2d 547) (1953) and asserts that the trial court’s distinction between a “franchise fee or tax” and a “license fee or tax” is unjustified.

The terms “franchise” and “license” are not synonymous, and therefore, the trial court properly distinguished between those rights and obligations derived from a franchise and those stemming from a license. “A franchise is a contract creating property rights. City of Summerville v. Georgia Power Co., 205 Ga. 843 (1) (55 SE2d 540); Atlantic C. L. R. Co. v. Southern R. Co., 214 Ga. 178 (2) (104 SE2d 77).” (Emphasis supplied.) Macon Ambulance Serv. v. Snow Properties, 218 Ga. 262, 265 (2) (127 SE2d 598) (1962). As the trial court correctly found, public utilities typically seek franchise rights from the governing authority in the area in which it seeks to provide services to use the streets and public ways for the purposes of rendering utility services. See OCGA § 36-34-2 (7).

“ ‘A license is a right granted by some competent authority to do an act which, without such authority, would be illegal.’ [Cits.] The words ‘license’ and ‘permit’ are often used synonymously. [Cits.] Where, pursuant to the police power, a license is granted, it is not a contract and it may be abrogated. [Cit.]” (Emphasis supplied.) Arlington Cemetery Corp. v. Bindig, 212 Ga. 698, 702-703 (2) (95 SE2d 378) (1956). Thus, in order for a city to collect a franchise fee there must be a contractual relationship between the city and the party from whom the fee is sought, but a city can collect a license fee pursuant to its general police powers.

With these distinctions in mind, we will next examine the City’s authority to collect the fees contemplated by the ordinance in question. As the trial court correctly found, both OCGA § 36-34-2 (7) and Section 5.21 of the Charter of the City of LaGrange empower the City to grant franchises for the use of City streets and public ways. Furthermore, the ordinance on its face purports to be authorized by the Act, as well. A review of the Act reveals that the only provision that could authorize the imposition of such a fee is OCGA § 46-3-14 (b), which provides in pertinent part: “No municipality may, by unreasonably withholding or conditioning right of way easements or franchises, defeat, impair, or interfere with the rights and restrictions applying to electric suppliers therein as provided for in this part. Rather, any secondary supplier within a municipality existing on March 29, 1973, and any electric supplier other than the primary supplier within any geographic area thereafter annexed to such municipality, shall pay the municipality for street franchise rights a sum of money calculated and payable in the same manner and on the same basis as is utilized with respect to the payment, if any, by the primary supplier (other than the municipality itself) for the same or substantially identical rights.” (Emphasis supplied.) As the trial court also correctly held, the authority to enter into such agreements does not mean that there is a franchise agreement between the City and Troup EMC.

Assuming arguendo, that the fee in question is a franchise fee as authorized by the Act, the trial court correctly inquired as to whether a contract, either express or implied, existed between the parties since a franchise is a contract creating property rights. The City does not contend that it has an express agreement with Troup EMC, but only that there is an implied franchise agreement between the City and Troup EMC resulting from Troup EMC’s acceptance of the privilege of using the City’s streets after the enactment of the ordinance. We agree with the trial court that no contract has been created by implication in this case.

The City’s ability to enter into franchise agreements is contained in Section 5.21 of its charter. That section provides, in pertinent part, as follows: “The mayor and council shall have the authority to exercise control over the use of the streets of the City of LaGrange. The power is hereby conferred upon the mayor and council to grant franchises for the use of said city’s streets and alleys, for the purposes of . . . electric companies. . . . The mayor and council shall determine the duration, provisions, terms, whether the same shall be exclusive or non-exclusive, and the consideration of such franchises; provided, however, that no franchise shall be granted for a period in excess of twenty (20) years and no franchise shall be granted unless the City receives just and adequate compensation therefore.” (Italics omitted.) As the trial court correctly found, this section requires that before a franchise can be granted by the City, the City must not only receive compensation from the party but also must set forth specific terms and conditions pursuant to which the franchise is granted. These requirements found in the City’s charter for a valid franchise agreement belie the City’s position that a contract with Troup EMC was created by implication.

Furthermore, the undisputed evidence illustrates that Troup EMC never gave the City any reason to anticipate that it would receive compensation for allowing Troup EMC to use its streets and alleys. The City promptly informed Troup EMC that it had passed the ordinance in question and that it sought payment of the fee from Troup EMC. Troup EMC at all pertinent times disputed the City’s right to collect such a fee from it. “ ‘(T)he law will not imply a promise to pay for services contrary to the intention of the parties. There can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated. . . . Under such circumstances no obligation ... is incurred. A subsequent change of intention by the parties performing the services does not alter the rule.’ (Citations and punctuation omitted.) Addison v. Southern R. Co., 108 Ga. App. 314, 315-316 (132 SE2d 833).” Smith Dev. v. Flood, 198 Ga. App. 817, 820-821 (403 SE2d 249) (1991). The City could have sought to enjoin the activities of Troup EMC until their dispute concerning the franchise agreement could be resolved. The City, however, did not seek to avail itself of that remedy. Troup EMC could have reasonably assumed from the City’s conduct of simply allowing it to continue using city streets and alleys after it had refused payment of the fee, without instituting any legal action for approximately a decade, that the City acquiesced in its conduct and did not expect payment of the requested fee.

The City further argues that this case is so factually similar to this court’s decision in Tri-State Elec. &c., supra, that our decision in that case is determinative of this one. We disagree. In Tri-State, a nonprofit electric membership cooperative applied to the City of Blue Ridge for a franchise granting it the right to use the streets, alleys and public ways of such municipality for the distribution of electricity. The City of Blue Ridge then granted that franchise upon the conditions set forth in an ordinance. Afterwards, the cooperative exercised its privileges under the franchise and paid the one percent fee charged by the City of Blue Ridge for the franchise for at least two years. Thereafter, the cooperative refused to pay the fee on the basis that the cooperative was exempt from paying that fee under the 1945 Georgia Constitution. Id. at 719-720. This court found in that case that neither the ratification of the 1945 Georgia Constitution nor the passage of the Electric Membership Corporation Act of 1937 repealed the City of Blue Ridge’s ability under its charter to enter into such franchise agreement and collect compensation for the granting of a franchise. Id. at 721.

While the City is correct that its charter provision enabling it to enter into franchise agreements is similar to the one in Tri-State, contrary to the City’s assertions, the charter provision did not create the contract between the City of Blue Ridge and the cooperative. It was only the passage of the ordinance specifically granting the cooperative a franchise, after the cooperative applied for a franchise, that formed the express contractual agreement between the parties. If Georgia Power, the only other secondary supplier of electricity in the corporate limits of the City of LaGrange, refused to fulfill its contractual obligations contained in its franchise agreement with the City, the Tri-State decision would offer controlling precedent. In this case, however, the City seeks to impose a franchise agreement on Troup EMC through its unilateral act of passing an ordinance that allows it to collect a certain fee from “[establishments engaged in the generation, transmission and/or distribution of electric energy for sale to premises in the city. . . .” For this reason, Tri-State offers inapposite precedent in this case.

2. Having found that there was no implied contract giving rise to a franchise agreement between the parties, the trial court then examined whether the City could collect the disputed fee sought from Troup EMC through its licensing authority. As was discussed briefly above, the ordinance in question was codified as part of Title 30 of the LaGrange City Code, which deals with licenses and business regulations. That title of the City Code recites that the City’s licensing power is derived from Sections 4.15 and 5.20 of the Charter of the City of LaGrange. The City alleges that the trial court erred in finding that Sections 4.15 and 5.20 of its charter do not allow the City to levy a license or franchise tax upon Troup EMC and in finding that the more specific language contained in Section 5.20 controls over the more general language of Section 4.15.

As the trial court correctly noted, the courts of this state “have long recognized that the basic power to tax belongs to the state. For a municipality to possess this power it must be conferred upon the municipality either directly in the constitution or by statute. It must be conferred in ‘plain and unmistakable terms.’ Southern Express Co. v. R. M. Rose Co., 124 Ga. 581, 588 (53 SE 185) (1905); Lewis & Holmes Motor Freight Corp. v. City of Atlanta, 195 Ga. 810 (25 SE2d 699) (1943).” Camden Tel. &c. Co. v. City of St. Marys, 247 Ga. 687, 688-689 (279 SE2d 200) (1981). The trial court closely and correctly examined the authorizing charter provisions to determine if the City’s right to collect the fee in question is conferred on the City in “plain and unmistakable terms.” Those sections are set forth below:

“Section 4.15 — License and Occupational Taxes. The mayor and council by ordinance shall have full power to levy such license and specific or occupation taxes upon the residents of the City of LaGrange, both individual and corporate, and on all those who transact or offer to transact business therein, or who practice or offers to practice any profession or calling therein, as the mayor and counsel may deem expedient for the public health, safety, benefit, convenience, or advantage of the city; to classify businesses, occupations, professions or callings for the purpose of such taxation in any way which may be lawful; to require such persons to procure licenses; to compel the payment of such licenses by execution or any other lawful manner; and to make laws and regulations necessary or proper to carry out the powers herein conferred, and to prescribe penalties for the violation thereof.”

“Section 5.20 — Power to Regulate and License. The mayor and the council shall have the power and authority to provide by ordinance for the registration and licensing of any trade, business, occupation, vocation, profession or any and every other undertaking pursued for the purpose of personal gain or profit of whatever nature, engaged in or carried on within the limits of the City of LaGrange, regardless whether or not the subject has an office or establishment within said city. The mayor and council shall be authorized to fix the amount, terms, and manner of issuing and revoking licenses, provided that this authority is subject to the Constitutions and laws of the United States and the State of Georgia. This power is conferred for the purpose of regulation under the police powers of the city and for the purpose of raising revenue for the operating of the city government through the imposition of a tax or fee on the privilege of operation within the city. This authority extends over individuals, partnerships, associations, corporations and their agents.” (Emphasis supplied.)

Finding that the business transacted by Troup EMC would fall within the more general “transact[ing] business” language of Section 4.15, but outside the more specific language of a “business . . . pursued for the purpose of personal gain or profit” contained in Section 5.20, the trial court correctly applied the rule of construction that the “specific statute will prevail over the general statute, absent any indication of a contrary legislative intent” to resolve the inconsistency between those sections. First Nat. Bank v. Sinkler, 170 Ga. App. 668, 670 (317 SE2d 897) (1984).

The trial court also properly found that the nonprofit characteristics of Troup EMC exempted it from the licensing power of the City pursuant to Section 5.20 of the City Charter. Troup EMC is required by statute to “[operate] without profit to its members.” OCGA § 46-3-340. Its bylaws also explicitly provide that it can operate only on a nonprofit basis.

The City’s reliance on Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440 (79 SE2d 832) (1953), for the proposition that this court has established that electric membership corporations are for profit entities as a matter of law is erroneous. In that case, the Lamar Electric Membership Corporation argued that an electric membership corporation was not a corporation within the meaning of the applicable section of the Georgia Code governing suits against electric corporations. This court was called upon in that case to decide if an electric membership corporation was in the “business of generating and transmitting electricity.” This court found that the nonprofit nature of electric membership corporations did not mean that it was not engaged in business within the meaning of the applicable statute because even an operation pursued for the improvement of the economic condition of shareholders (or members in the case of electric membership corporations) was sufficient to constitute doing business. Id. at 451-453. That case did not hold that electric membership corporations are for profit entities as a matter of law.

The City also relies upon this court’s decision in Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561 (278 SE2d 143) (1981), to support its position that electric membership corporations are for-profit entities. In that case, this court found that the members of an electric membership corporation are disqualified from serving as jurors in a suit against the corporation because the members have a right to share in the earnings of the corporation. Id. at 562-563. That ruling, however, did not affect the nonprofit nature of electric membership corporations dictated by the Georgia legislature. Accordingly, the City’s argument that this court has held as a matter of law that electric membership corporations are for profit entities must fail.

3. The City’s final enumeration of error charges that the trial court erred in failing to grant its motion for summary judgment. Because we find the trial court’s grant of Troup EMC’s motion for summary judgment to be proper for the reasons set forth above, it is axiomatic that this enumeration of error must also fail.

Decided June 25, 1991

Reconsideration denied July 12, 1991

Hurt, Richardson, Garner, Todd & Cadenhead, L. Clifford Adams, Jr., Lewis & Taylor, James R. Lewis, for appellant.

Paul, Hastings, Janofsky & Walker, James A. Orr, Kathy R. Bess, Wyatt, Wyatt & Solomon, Charles E. Solomon, Jr., for appellee.

Judgment affirmed.

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

       Prior to its amendment in 1986, this section applied to “[a]ny electric light and power company furnishing retail service to premises in the City” rather than “[e]stablishments engaged in the generation, transmission and/or distribution of electric energy for sale to premises in the city.”

       The City admits, and the trial court properly found, that the fee in question is a revenue producing measure and not merely for regulatory purposes.