text:
    A90A1224.
    SIMMONS v. WEBER.
    (398 SE2d 795)
   Banke, Presiding Judge.

The appellee, Leo Weber, joined by his brother John Weber, brought this suit to recover damages for breach of contract and fraud in connection with their purchase of a fire-damaged 1979 Corvette automobile from the appellant, Ernie Simmons, Sr. Subsequent to the commencement of the action, John Weber sold his interest in the vehicle to the appellee, assigned his cause of action to him, and filed a voluntary dismissal of his claim without prejudice. The case was thereafter tried before a jury, which awarded the appellee $12,000 as actual damages and $2,000 as punitive damages. The trial court overruled the appellant’s subsequent motions for new trial and judgment notwithstanding the verdict, and this appeal followed.

When the appellant, who is in the auto parts business, acquired the fire-damaged vehicle, it carried a “parts-only” designation which prevented it from being registered as a motor vehicle. The appellee and his brother purchased the vehicle from the appellant on March 16,1985, for $3,941.60. However, the sales receipt and bill of sale were made out only to the appellee’s brother, because the two of them intended at that time that he would transport the car to his home state of North Dakota for resale. It was established that the appellant’s son, who had handled the negotiations surrounding the transaction, had represented to the appellee and his brother that a title to the vehicle would be forthcoming and had written “title guaranteed” on the sales receipt. The brothers rebuilt the Corvette during the following month but thereafter learned that it could not legally be driven because, due to its “parts-only” designation, the Motor Vehicle Division of the Georgia Department of Revenue would not issue a title for it. However, it appears that the appellee did finally secure a certificate of title for the vehicle a week and a half prior to the trial of the present action. Held:

1. The appellant contends the trial court erred in refusing to grant a directed verdict or judgment notwithstanding the verdict on the ground that the appellee was not the proper party to pursue the claim. As there was evidence from which it could be inferred that the appellee was a joint-purchaser of the vehicle and that he had obtained a valid assignment of his brother’s interest in the car, we find this enumeration of error to be without merit.

2. The appellant contends that the award of actual damages in the amount of $12,000 was not supported by the evidence. We agree. The appellee sought to recover his full investment in the vehicle, consisting of the purchase price ($3,941.60), the cost of the parts ($2,642.76) and labor (valued at $4,080) involved in restoring it, and storage expenses ($1,440). He also sought to récover damages for depredation (estimated at $6,000) and for the interest income (estimated at $500) he allegedly could have earned on the purchase price. Pretermitting whether all of these alleged elements of damage, which total over $18,604.36, could otherwise be considered recoverable, the appellee obviously was not entitled both to retain the vehicle and to recover his entire investment in it.

“Fraud ordinarily gives the injured party the right either to rescind the contract, or, by affirming the same, to claim damages.” Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 728 (3) (16 SE2d 176) (1941); OCGA § 13-5-5. Since the appellee elected to keep the car, he was entitled to recover “the actual loss proximately caused by the misrepresentation.” Citizens Bank of Ball Ground v. Johnson, 191 Ga. App. 155, 158 (2) (381 SE2d 121) (1989). “[I]f the contract is one of purchase and sale the actual damages are the difference between the value of the thing sold at the time of delivery and what its value would have been if the representations made had been true.” Windsor Forest, Inc. v. Rocker, 115 Ga. App. 317, 322 (2) (154 SE2d 627) (1967).

There was testimony that the actual market value of the car at the time of the sale was $1,775, and the money and effort expended by the appellee and his brother in restoring the vehicle prior to learning of its “parts-only” designation obviously increased its value to some extent. Clearly, there was no way the jury could have determined under the circumstances that the appellee had sustained net damages in the amount of $12,000 as a result of the misrepresentation concerning the registration status of the vehicle. We accordingly hold that the trial court erred in denying the appellant’s motion for new trial. “However, inasmuch as the evidence would have supported an award of damages in favor of the appellee in some amount, we hold that the trial court did not err in denying the appellant’s alternative motion for judgment notwithstanding the verdict.” Turner v. Connor, 192 Ga. App. 348, 349 (385 SE2d 19) (1989). We further hold that any retrial should be limited to the issue of damages “since the original verdict established liability.” Phoenix Airline Svcs. v. Metro Airlines, 194 Ga. App. 120, 127 (390 SE2d 219) (1990).

3. The appellant contends that the trial court erred in refusing to give his requested charge on impeachment. As the charge given included the substance of the appellant’s requested charge on this issue, we find this enumeration to be without merit. See Gay v. City of Rome, 157 Ga. App. 368, 370 (3) (277 SE2d 741) (1981).

4. Having determined that the appeal was meritorious, we must necessarily deny the appellee’s motion seeking the assessment of a ten-percent penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal.

Judgment affirmed in part and reversed in part.

Birdsong and Cooper, JJ., concur.

Decided November 1, 1990.

Jeffrey B. Talley & Associates, Jeffrey B. Talley, for appellant.

Patrick F. McMahon, for appellee.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A0819.
    WILLIAMS v. MIKE HILL & ASSOCIATES, INC.
    (398 SE2d 292)
    Decided October 19, 1990
    Rehearing denied November 5, 1990

      Saveli & Williams, Mark S. Gannon, Richard G. Farnsworth, Robert E. Mulholland, for appellant.

      Joseph A. Munger, Robert R. Potter, for appellee.
   Cooper, Judge.

This appeal is dismissed as improvidently granted.

Appeal dismissed.

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


author: Pope, Judge.

text:
    A90A0915.
    DECATUR et al. v. BARNETT et al.
    (398 SE2d 706)
   Pope, Judge.

Plaintiffs Caitlin L. and Douglas A. Decatur, wife and husband, brought this action against their immediate and two remote grantors of certain real property in Fayette County. They allege the grantors breached the warranty of title to the land, issued by each of them successively, because plaintiffs have discovered that the one-acre lot is in violation of the Fayette County zoning ordinance which imposes a minimum lot size of five acres for land within the applicable zoning classification. Moreover, the lot does not comply with any existing classification in the county.

The record shows the lot in question was originally part of a larger parcel measuring 7.6 acres. One of the remote grantors subdivided the larger parcel and sold off the one-acre lot. The one-acre lot was subsequently conveyed to plaintiffs’ immediate grantors who then conveyed the lot to plaintiff Caitlin Decatur, who conveyed her interest in the lot to herself and her husband jointly. Plaintiffs filed a motion for partial summary judgment against their immediate grantors for the return of the purchase price they paid for the lot plus interest and for the closing costs incurred in the purchase. Plaintiffs further moved for partial summary judgment against the remote grantors for joint and several liability for the return of the purchase price to the extent of the sums paid to them by their respective grantees in the two previous sales of the lot. Additional items of special damages prayed for in plaintiffs’ complaint were not covered in the motion for summary judgment but were left for jury determination. We granted plaintiffs’ application for interlocutory appeal and we hereby reverse the denial of plaintiffs’ motion.

1. We agree with that portion of the trial court’s order declaring that the zoning status of property does not relate to title and does not create a breach of warranty of title. See Sachs v. Swartz, 233 Ga. 99 (209 SE2d 642) (1974). Moreover, zoning being a matter of law, both the seller and the purchaser are presumed to know the applicable zoning regulations. See Maloof v. Gwinnett County, 231 Ga. 164 (200 SE2d 749) (1973). The fact that the use of property is restricted or regulated by ordinance is not an encumbrance upon title. However, here the property when sold was in violation of the applicable ordinance.

The courts of Georgia have not addressed whether the conveyance of land which is in violation of a municipal ordinance is such an incumbrance as to constitute a breach of warranty of title. However, the majority of jurisdictions which have considered this issue have held that violation of a municipal ordinance is a breach of the warranty of merchantability of title, for it exposes the purchaser to litigation. See, e.g., Lohmeyer v. Bower, 227 P2d 102 (Kan. 1951); Oatis v. Delcuze, 77 S2d 28 (La. 1954); Moyer v. De Vincentis Constr. Co., 164 A 111 (Pa. Super. 1933). We find these opinions instructive and hold that conveyance of land which is in violation of a zoning ordinance is a breach of the covenants included in a general warranty of title. See OCGA § 44-5-62. The owner of land which is in violation of an ordinance is subject to civil and even criminal penalties. Even if the title is free from claims of paramount interest, it cannot be said that title is free from encumbrances when the status of the property exposes the titleholder to litigation. “ ‘[A] title is not marketable where it exposes the party holding it to litigation.’ [Cit.]” Moyer v. De Vincentis Constr. Co., supra at 112.

In this case, the applicable regulations prohibit conveyance of a lot which, like the one at issue in this case, was sub-divided without official approval. See § 10-1.1 of the Fayette County Subdivision Regulations (1973, as amended through December 1987). Therefore, neither plaintiffs’ immediate nor remote grantors had the right to convey the lot without prior approval and, by operation of the ordinance, the plaintiffs themselves do not have the right to convey their property in its current status. Pursuant to § 10-2 of the Regulations: “Any person . . . who shall divide and offer for sale any real estate in violation of the terms or provisions of this Ordinance” is in violation of law and subject to criminal punishment. We reject defendants’ ar-. gument that said ordinance applies only to the original subdivision of the land and does not render plaintiffs subject to litigation or penalty. When read in its entirety the applicable ordinance prohibits not only the initial subdivision and sale of the lot but the maintenance and further sale of the lot. This particular ordinance does not merely regulate the use for which this property may be employed (e.g., residential, industrial, etc.) but prohibits the very existence of this non-conforming lot. This lot does not conform to any existing zoning classification. Pursuant to § 10-3 of the Fayette County Ordinance (1980, as amended through March 1988), any person who violates the ordinance is subject to fine or imprisonment. Thus, by purchasing the lot in its non-conforming state, the plaintiffs are subject to criminal prosecution.

2. The sales contract between plaintiffs and their immediate grantors stipulated the grantors’ warranty of good title was made “subject . . . to . . . zoning ordinances affecting said property. . . .” As noted in Division 1, even without this language, the existence of public regulations or restrictions on the use of land does not create an encumbrance upon the title. The contract language merely stipulates that the conveyance was made subject to the existence of zoning ordinances which are not, in any event, encumbrances upon good title. The contract language does not make the general warranty subject to an exception for an existing violation of public regulations or restrictions. The existence of violations of applicable zoning laws is an encumbrance on the marketability of title. Thus, the trial court erred in concluding an issue of fact exists concerning whether the parties agreed to so limit the scope of the warranty thereby estopping plaintiffs from bringing an action for breach of warranty.

3. The proper measure of damages for a breach of warranty of title to land is set forth by statute at OCGA § 44-5-66. The purchase money with interest from the time of sale -should be awarded unless the jury determines a setoff should be allowed against the interest for use of the premises. “However, if valuable improvements have been made on the premises, the interest should be allowed.” Id. Here the record shows plaintiffs made valuable improvements to the property so, by statute, plaintiffs are entitled to an award of purchase money plus interest. As claimed by plaintiffs, the remote warrantors are liable over to the immediate warrantors. See Sawyer Coal &c. Co. v. Kinnett-Odom Co., 192 Ga. 166 (2) (14 SE2d 879) (1941). Cf. Croom v. Allen, 145 Ga. 347 (1) (89 SE 199) (1916) (where a remote grantor was liable to plaintiff for breach of warranty of title).

Decided September 25, 1990

Rehearing denied November 5, 1990

Levine & D’Alessio, Caitlin L. Decatur, pro se.

Sarah H. Murphy, John C. Parker, Debra L. Dalton, R. Dolores Daniel, McMorries, McClure, Daniel & Lundy, Jon W. McClure, for appellees.

The trial court erred in holding the plaintiffs are not entitled to damages until it can be determined whether they are able to obtain a variance from the zoning ordinance. Had plaintiffs chosen, in lieu of an action for breach of warranty of title, to pursue a zoning variance they could possibly seek costs and other damages for obtaining a variance. See Williamson v. MTA Brokerage Consultants, 175 Ga. App. 173 (333 SE2d 24) (1985); Pone v. Barbre, 57 Ga. App. 684 (2) (196 SE 287) (1938). However, the court cannot impose on an innocent party an affirmative duty to correct or mitigate the breach of the culpable party. See DeKalb County &c. Credit Union v. D. L. Claborn Buick, 162 Ga. App. 631 (292 SE2d 507) (1982). Damage for breach of warranty, pursuant to OCGA § 44-5-66, is the proper measure of damage in this case and the trial court erred in failing to grant plaintiffs’ motion for partial summary judgment.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.

       The lot contains a dwelling which is not connected to the municipal water system. Although the complete ordinance does not appear in the record, the parties apparently agree that according to the county zoning ordinance, any lot one acre or less in size must be connected to the municipal water system.


text:
    A90A1131.
    LYTLE et al. v. THE STATE.
    (398 SE2d 733)
   Cooper, Judge.

Appellants appeal the trial court’s denial of their motions to vacate and set aside their guilty pleas. The trial court entered its order on December 14, 1989, and on the same day, appellants filed motions for reconsideration. The trial court denied the motions for reconsideration on January 18, 1990, and appellants filed a notice of appeal on February 6, 1990. A motion to vacate and set aside final judgment is not a motion enumerated in OCGA § 5-6-38 which extends the time for filing a notice of appeal. Motions to set aside and in arrest of judgment extend the time for filing when predicated upon a nonamendable defect which appears on the face of the record or pleadings. OCGA § 17-9-61 (a). See Rockdale County v. Water Rights Committee, 189 Ga. App. 873, 874 (377 SE2d 730) (1989). No such showing was made in this case, as appellants merely seek reconsideration of the trial court’s acceptance of their guilty pleas. Even if the motions are viewed liberally as motions for withdrawal of pleas (OCGA § 17-7-93), the. notice of appeal is nonetheless untimely because appellants’ motions for reconsideration failed to extend the time for filing a notice of appeal. OCGA § 5-6-38. See also Holiday v. State, 258 Ga. 393 (2) (369 SE2d 241) (1988). Thus, we lack jurisdiction to entertain this appeal.

Decided October 16, 1990

Rehearing denied November 5, 1990

Herbert Shafer, for appellants.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, for appellee.

Appeal dismissed.

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


text:
    A90A1269.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA/ALBANY STATE COLLEGE v. COHEN.
    (398 SE2d 758)
   Cooper, Judge.

This case originated as an administrative proceeding before the Georgia Office of Fair Employment Practices (“GOFEP”), based upon appellee’s charge of racial discrimination. Appellee, an associate professor at Albany State College, alleged that he was denied promotion to full professor because of his race. Appellee is white and Albany State College is a predominantly black college. After the issuance of a letter of determination by GOFEP, a hearing was held before a GOFEP special master who determined that Albany State College did engage in racial discrimination in the denial of appellee’s promotion. Upon appeal to the superior court, the findings of the special master were affirmed. Appellants’ application for discretionary review was then granted by this court.

Although appellants raise five enumerations of error, our discussion of one of the enumerations will render determinations on the other enumerations unnecessary at this time. Appellants argue that since the superior court did not allow appellants to orally argue the case before the superior court or allow appellants to submit written briefs to the court in violation of OCGA § 50-13-19 (g), then this court should remand to the superior court for such to occur. We agree. OCGA § 45-19-39 (a), which establishes the procedures for an appeal to the superior court from an order of a special master, specifies that all such appeals shall be in accordance with Chapter 13 of Title 50 of the Georgia Code. OCGA § 50-13-19 (g) requires a superior court, on review of administrative proceedings, to hear oral argument and receive written briefs upon request. Appellants clearly made such requests in their petition for review to the superior court and then filed a motion for reconsideration on this ground after the order had been issued. We determine that the superior court should fulfill its duty to review this case as required by statute before we commence our review. We therefore remand to the superior court to hear oral argument and receive written briefs and to issue an order based thereon.

Decided October 24, 1990

Rehearing denied November 5, 1990.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, William B. Hill, Jr., Deputy Attorney General, Patricia T. Barmeyer, Assistant Attorney General, Richard S. Thompson, Special Assistant Attorney General, for appellant.

Black & Black, Eugene C. Black, Jr., for appellee.

Case remanded.

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


author: Deen, Presiding Judge.

text:
    A90A1628.
    WADE v. THE STATE.
    (398 SE2d 728)
   Deen, Presiding Judge.

Appellant Wade was arrested and charged with driving under the influence (OCGA § 40-6-391 (a) (1)) and driving with blood alcohol concentration greater than .12 grams (OCGA § 40-6-391 (a) (4)). A DeKalb County jury acquitted her on the second count but found her guilty on the first. On appeal she enumerates two errors: (1) the trial court’s statement, made in the course of preliminary jury instructions, that “[y]ou [jurors] should not consider anything the attorneys say during your deliberations because it is not evidence”; and (2) the denial of defendant/appellant’s motion for mistrial on the basis of the State’s alleged introduction of new evidence during closing argument. Held:

1. We find no harmful error in the trial court’s instruction. Examination of the trial transcript reveals that the challenged sentence in the instruction was preceded by the statement that evidence consisted only of sworn testimony and exhibits, and was immediately followed by these sentences: “Your verdict has to be based on the evidence, and the evidence will come . . . from the witness stand and also from the exhibits. . . The attorneys have no firsthand personal knowledge of anything that happened in this particular case. They were not present when this alleged incident occurred. So that is why they are not witnesses and they are not testifying under oath. So please remember that nothing they say, that includes the objections and legal arguments that you may overhear, it is not evidence.” The court continued in this vein, reiterating the distinction between what does and does not constitute evidence and emphasizing that the jury is to consider only the former.

We find it difficult to conceive how the sentence to which appellant takes exception, when read in context, could possibly have confused the average juror. It is axiomatic that the jury charge is to be read as a whole, and that a single lapsus linguae, preceded and followed by correct instructions, will not vitiate a thorough and otherwise correct instruction. “The general rule is that, ‘a mere verbal inaccuracy in a charge, which results from a palpable “slip of the tongue,” and clearly could not have misled or confused the jury,’ is not reversible error. [Cit.]” Gober v. State, 247 Ga. 652, 655 (278 SE2d 386) (1981); accord Hall v. State, 192 Ga. App. 151 (384 SE2d 428) (1989). This enumeration is without merit.

2. Also without merit is appellant’s second enumeration of error. According to the record, during closing argument the prosecutor used paper cups of several sizes to demonstrate the alcohol content of each of the drinks that appellant had admittedly consumed on the evening in question, prior to driving her vehicle. It is well settled that during closing argument the prosecutor may make any argument which can be reasonably supported by the evidence adduced at trial. Durden v. State, 250 Ga. 325, 329 (297 SE2d 237) (1982); Johnson v. State, 246 Ga. 126 (269 SE2d 18) (1980). The transcript reveals that in the instant case the court, outside the presence of the jury, responded to defense counsel’s objection to the prosecutor’s use of the cups by stating that the cups were mere “props” and as such were analogous to any other model or illustrative material, such as a skeleton in a medically related case or charts or maps in other sorts of cases. This court has held that charts and diagrams may be used in opening and closing arguments but may not go out with the jury. McClure v. State, 163 Ga. App. 236, 238 (293 SE2d 496) (1982). In the instant case, according to the record, the cups were not allowed to go out with the jury.

Generally, whether or not to permit demonstrations is within the sound discretion of the court, Redwing Carriers v. Knight, 143 Ga. App. 668 (239 SE2d 686) (1977), provided the prosecution has not gone outside the evidence and introduced “matters which [have] not been proven in evidence.” Winget v. State, 138 Ga. App. 433, 437 (226 SE2d 608) (1976); accord Williams v. State, 254 Ga. 508 (330 SE2d 353) (1985). A careful reading of the transcript of the proceedings below persuades us that the prosecution did not introduce, or attempt to introduce, new evidence by way of her visual demonstration and, moreover, that the trial court did not abuse its discretion in permitting the demonstration. The transcript further reveals that the court offered defense counsel time for rebuttal for the purpose of dispelling any erroneous impression that the use of the cups might, arguendo, have created in the jurors’ minds. We find no error in the trial court’s rulings on the incident or consequently, in its denial of appellant’s motion.

Decided October 15, 1990

Rehearing denied November 5, 1990

Billy L. Spruell, Brian M. Dubuc, for appellant.

Ralph T. Bowden, Jr., Solicitor, Debra J. Blum, Cliff Howard, Assistant Solicitors, for appellee.

3. We note that Part I of appellant’s brief contains, in addition to the “succinct and accurate statement of such pleadings, facts, and issues of law as are made in the appeal. . .,” lengthy excerpts from the record illustrative of each of the enumerations of error and constituting a sort of “mini-argument.” We remind counsel that Court of Appeals Rule 15 (a) requires that such matter be placed in Part III of the brief (where in the case sub judice counsel does in fact continue his argument and citation of authority).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs in Divisions 1 and 3 and in the judgment.


author: Carley, Chief Judge.

text:
    A90A1397.
    BROWN v. BAKER.
    (398 SE2d 797)
   Carley, Chief Judge.

Appellee-plaintiff filed the instant tort action, seeking to recover property damages incurred in a vehicular collision and, in addition, his expenses of litigation pursuant to OCGA § 13-6-11. Appellant-defendant answered, denying the material allegations of the complaint and asserting, among her other defenses, that the proximate cause of the collision was appellee’s negligence. Discovery subsequently established that appellee’s ÓCGA § 13-6-11 claim was based solely upon his contention that appellant’s liability insurer had “arbitrarily and capriciously refused to make a good faith effort to settle [appellee’s] claim and made unreasonably low offers of settlement ... in an attempt to force [appellee] to settle his claim for less than the true value thereof. . . Based upon this and other discovery, appellant moved for partial summary judgment as to appellee’s OCGA § 13-6-11 claim. The trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied for an interlocutory appeal and that application was granted in order that we might clarify the issue of when expenses of litigation pursuant to OCGA § 13-6-11 are recoverable in a tort action.

1. The instant case does not concern the liability of an insurer for penalties and damages under OCGA § 33-34-6. It concerns the liability of an alleged tortfeasor for expenses of litigation under OCGA § 13-6-11. Accordingly, appellee’s reliance on Downer v. Ga. Farm &c. Ins. Co., 176 Ga. App. 641 (337 SE2d 422) (1985) is misplaced. See generally New York Life Ins. Co. v. Bradford, 57 Ga. App. 657, 663 (2) (196 SE 92) (1938).

2. Contrary to appellee’s contentions, OCGA § 13-6-11 does not create an independent cause of action. That statute merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of his damages. See generally Citibank (S.D.) N.A. v. Knowles, 168 Ga. App. 664 (310 SE2d 18) (1983).

3. “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith in making the contract, has béen stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” OCGA § 13-6-11. “For the plaintiff to recover [he] need only show any one of the three conditions to exist. [Cit.]” Jackson v. Brinegar, Inc., 165 Ga. App. 432, 436 (2) (301 SE2d 493) (1983).

The evidence of record in the instant case clearly pierces the pleadings insofar as appellee’s recovery under OCGA § 13-6-11 may be predicated upon appellant’s “bad faith.” Appellee seeks a recovery under OCGA § 13-6-11 based solely on events which occurred after the vehicular collision wherein his property was damaged. However, “[i]t is well settled that the ‘bad faith’ contemplated by [OCGA § 13-6-11] is bad faith connected with ‘the transaction and dealings out of which the cause of action arose,’ rather than bad faith in defending or resisting the claim after the cause of action has already arisen. [Cits.]” Computer Communications Specialists v. Hall, 188 Ga. App. 545, 547 (3) (373 SE2d 630) (1988). “The bad faith referred to [in OCGA § 13-6-11], in actions sounding in tort, means bad faith in the transaction out of which the cause of action arose. [Cit.]” Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 336 (5) (60 SE2d 802) (1950). See also Grant v. Hart, 197 Ga. 662, 672 (2) (30 SE2d 271) (1944). The “transaction and dealings” which form the basis of appellant’s tort claim is the occurrence of a vehicular collision and it is undisputed that there was no “bad faith” on appellant’s part in connection with that collision. Compare Tanner v. Gilleland, 186 Ga. App. 377, 378 (3) (367 SE2d 257) (1988).

Appellee’s reliance on U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744 (320 SE2d 868) (1984) is misplaced. That case does hold that certain evidence regarding post-collision events “was properly admitted to show [the defendant] acted in bad faith, or was stubbornly litigious or put the plaintiff to unnecessary trouble or expense.” (Emphasis supplied.) U-Haul Co. of Western Ga. v. Ford, supra at 745 (2). However, this statement was made in the context of addressing an evidentiary ruling and clearly stands only for the proposition that the evidence was otherwise generally admissible with regard to the plaintiff’s OCGA § 13-6-11 claim rather than for the proposition that such evidence would support the plaintiff’s recovery of expenses of litigation under the specific “bad faith” provision of OCGA § 13-6-11. The issue of the actual legal basis which authorized the plaintiff’s recovery under OCGA § 13-6-11 was addressed in an entirely separate division of the opinion: “The factual situation in the instant case is very similar to that in Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (191 SE2d 317) (1972). . . .” U-Haul of Western Ga. v. Ford, supra at 746 (4). By this citation to Buffalo Cab Co., it is clear that the specific provision of OCGA § 13-6-11 pursuant to which the plaintiff was authorized to recover expenses of litigation was not the defendant’s “bad faith,” but the defendant’s having caused the plaintiff “unnecessary trouble and expense.” Buffalo Cab Co., supra at 524 holds that “[t]he key to the test is ‘bona fide controversy.’ Where none exists, then forcing a plaintiff to resort to the courts in order to collect is plainly causing him ‘unnecessary trouble and expense.’ ” Accordingly, U-Haul Co. of Western Ga., like Buffalo Cab Co., is merely a decision which holds that certain evidence of the defendant’s so-called “bad faith” occurring after a cause of action in tort arises may be admissible to demonstrate that he caused the plaintiff unnecessary trouble and expense. However, neither U-Haul of Western Ga. nor Buffalo Cab Co. holds that such evidence will support a plaintiff’s recovery of the expenses of litigation under the specific “bad faith” provision of OCGA § 13-6-11.

4. “When bad faith is not an issue and the only asserted basis for a recovery of attorney [’s] fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not ‘any evidence’ to support an award pursuant to OCGA § 13-6-11 ([cit.]) if a bona fide controversy clearly exists between the parties. [Cits.] Thus, in a case where bad faith is not an issue, attorneyf’s] fees are not authorized under OCGA § 13-6-11 ([cit.]) if the evidence shows that ‘a genuine dispute exists — whether of law or fact, on liability or amount of damages, or on any comparable issue. Where (no such genuine dispute) is found, . . . the jury (would be authorized) to award the expenses of litigation.’ [Cit.]” Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 224-225 (6) (312 SE2d 386) (1983).

The evidence of record in the instant case clearly demonstrates that a bona fide controversy does exist as to whether the collision was caused by the negligence of appellant or the negligence of appellee or the negligence of both. “It is the general law of this state that questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly issues for jury resolution, and a court should not remove the issue [s] from the jury except in plain and indisputable cases. [Cit.]” Campbell v. Forsyth, 187 Ga. App. 352, 355 (1) (370 SE2d 207) (1988). Accordingly, a genuine dispute does exist in the instant case as to both liability and damages and those cases wherein no such genuine dispute did exist, such as U-Haul Co. of Western Ga. v. Ford, supra, and Buffalo Cab Co. v. Williams, supra, are, therefore, distinguishable.

5. Moreover, the evidence in U-Haul Co. of Western Ga. v. Ford, supra, and Buffalo Cab Co. v. Williams, supra, not only demonstrated the absence of a bona fide controversy, but also showed an utter refusal on the part of the defendant to resolve the matter without resort to litigation. “The court [in both cases] stated that it deplored the ‘so sue me’ attitude of such defendants, who have no valid reason for refusing to pay a claim, and held that the recovery of attorney [’s] fees was authorized.” U-Haul of Western Ga. v. Ford, supra at 746 (4).

In the instant case, appellant did not exhibit a comparable post-collision-pre-litigation attitude of “so sue me” without having a valid reason for questioning appellee’s claim. To the contrary, the evidence in the instant case not only demonstrates the existence of a bona fide controversy as to liability and damages, but also shows a willingness on the part of appellant to resolve the matter without resort to litigation. Offers of settlement were extended to appellee which were rejected because they were, in his opinion, too low. A recovery of expenses of litigation is not authorized under OCGA § 13-6-11 based solely on the defendant’s “failure to pay a specific sum in settlement [of a disputed claim for damages].” U-Haul of Western Ga. v. Ford, supra at 746 (4). “[W]e cannot . . . conceive of a circumstance in which a defendant would incur liability to a plaintiff for attorney [’s] fees simply by offering to settle a disputed claim on terms which the plaintiff found unsatisfactory and refused to accept.” Computer Communications Specialists v. Hall, supra at 547 (3). “Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.” Tift v. Towns, 63 Ga. 237, 242 (3) (1879).

Decided November 5, 1990.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, for appellant.

Varnell & Varnell, Howard J. Stiller, for appellee.

6. Construing the evidence of record most favorably for appellee, “there is no genuine issue of material fact as to whether any of the criteria of OCGA § 13-6-11 ([cit.]) are applicable to [appellant], and the [trial] court erred by failing to grant summary judgment to [appellant] on this issue.” City of Marietta v. Holland, 252 Ga. 299, 304 (3) (314 SE2d 97) (1984).

Judgment reversed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.


author: Sognier, Judge. Carley, Chief Judge,

text:
    A90A0739.
    A90A0740.
    SANCHEZ v. THE STATE. ROCHE v. THE STATE.
    (398 SE2d 740)
   Sognier, Judge.

Johnny Sanchez and Donald Roche were convicted of trafficking in cocaine, and they appeal.

1. Appellants contend the trial court erred by denying their motion to suppress. Evidence adduced at the hearing on appellants’ motion and at trial, see generally Sanders v. State, 235 Ga. 425, 431-432 (219 SE2d 768) (1975), disclosed that Sergeant Sanford West of the Cherokee County Sheriff’s Department received a telephone call from Lyndall Bounds, owner of an automobile repair shop in Acworth. Bounds related to West a conversation that he and an employee had overheard between two men in a 1985 Chevrolet Cavalier who had pulled into his shop to have new spark plugs installed. Bounds told West the two men had argued about the possibility of someone finding the “dope” in the car. The two men then took a large plastic garbage bag from inside the passenger compartment of the Chevrolet, placed it in the trunk, removed the trunk key from the key ring, and left the ignition key in the car before leaving the shop to go to a nearby restaurant. Bounds told West that the automobile had no license plate tag and that the two men were from Chicago.

West testified he radioed Deputy Brenda Chin, a uniformed patrol officer, and arranged to meet her at a restaurant parking lot near the intersection of two highways some 200 or 300 yards from the automobile repair shop. West apprised Chin of the situation, and shortly after she left, West observed a black 1985 Chevrolet Cavalier with no tag and two male occupants departing the automobile repair shop. West testified that almost immediately he received a radio dispatch that Bounds had called to alert him that the subjects of the tip he had given West were leaving his business. West then radioed Chin about the car and observed her stop the Chevrolet a short distance from the repair shop.

Based on the information provided to West by Bounds, a private citizen who had overheard appellants discussing the contraband in their car, which West then relayed to Deputy Chin, we find that Chin had probable cause to stop and arrest appellants for a violation of the Georgia Controlled Substances Act (GCSA). “An officer has authority to arrest anyone of whom he has a reasonable suspicion that he has committed a felony, without waiting first to procure a warrant. [Cit.] What constitutes ‘reasonable grounds of suspicion’ is generally to be determined under the facts of the individual case. [Cit.] ... ‘It is well settled that an arrest may be made upon hearsay evidence; and indeed, the “reasonable cause” necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.’ [Cit.] ‘It is the function of the court to determine if the facts upon which the officer acted would warrant a man of reasonable caution to believe that an offense had been committed. . . .’ [Cit.]” Chaney v. State, 133 Ga. App. 913, 916 (213 SE2d 68) (1975).

The transcript reveals, however, that after Chin stopped appellants’ car and ascertained that the car had a valid temporary Illinois license plate and that appellant Roche, the driver, had a valid Illinois document serving as his driver’s license, Chin did not arrest appellants for possession of contraband, for which she had probable cause, but instead arrested appellant Roche for having no proof that the Illinois registered car he was driving was insured, citing OCGA § 33-34-12. Chin and West, who arrived at the scene shortly after the arrest, then commenced an inventory search of the car and discovered suspected contraband and drug paraphernalia inside the passenger section of the car. Appellant Sanchez was then arrested for violation of the GCSA and Roche was also charged with this additional offense. A subsequent search of the trunk, pursuant to a warrant, revealed a large plastic garbage bag containing $4,000 and nine ounces of 90 percent pure cocaine.

The transcript clearly establishes that Chin arrested Roche for violation of OCGA § 33-34-12 (a) (1). We do not agree with the State that Chin’s arrest of appellant Roche for having no proof of insurance was a valid arrest. OCGA § 33-34-12 (a) (1) provides that “[t]he owner or operator of a motor vehicle shall keep proof or evidence of the minimum insurance coverage required by this chapter in the vehicle at all times during the operation of the vehicle. . . . [A]ny person who fails to comply with the requirements of this subsection shall be guilty of a misdemeanor . . . .” The term “motor vehicle,” as used in the Georgia Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., is defined as “a vehicle . . . required to be registered under the laws of this state relating to motor vehicles.” OCGA § 33-34-2 (6). “Where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.” (Citations and punctuation omitted.) Moody v. State, 190 Ga. App. 91, 92 (378 SE2d 375) (1989). Since it is uncontroverted that the car Roche was driving was an Illinois automobile not required to be registered under Georgia law, appellant Roche was not subject to arrest under OCGA § 33-34-12 (a) (1) for failure to have proof of insurance for the car.

We do not agree with appellants, however, that Roche’s arrest for violating a statute inapplicable to him invalidates the arrest in toto where the arresting officer had probable cause to arrest both appellants for violation of the statute for which they were ultimately convicted. “The fact that [appellant Roche] was not initially charged with [violating the Georgia Controlled Substances Act] but with another, apparently baseless, charge does not invalidate the arrest. It is clear from the record that the actual reason he was taken into custody was because he was believed to be [violating the GCSA] and that this belief was a reasonable one under the circumstances. . . . [T]he arresting officer suspected [appellant Roche] of the crime for which he [and appellant Sanchez were] ultimately charged from the first moment [she] saw [them]. It is obvious that the initial charge of [“no proof of insurance”] was made merely as a pretext for taking [appellant Roche] into custody.” Reese v. State, 145 Ga. App. 453, 454-455 (243 SE2d 650) (1978). Although appellant Roche was arrested for violating a statute which was not applicable to him (although, had it been applicable, there was probable cause to believe that he had violated the statute), whereas in Reese the appellant was arrested for a crime he could legally have committed (“prowling”), but for which no probable cause existed, we do not find that the reason why the stated arrest was baseless affects the validity of the arrest where probable cause clearly existed to make the arrest for which the arrestee was convicted.

“Since we have ruled that no such pretext was necessary [to effect the arrests], the mere fact that it was used does not require a reversal of the convictions.” Reese, supra at 455 (1). Accordingly, the trial court did not err by denying appellants’ motion to suppress.

2. Appellants contend the trial court erred by failing to give the jury their requested charge that “[t]he mere fact that a defendant may be aware that someone else is in possession of cocaine does not establish that the defendant is a co-conspirator or aider and abettor. If you find that [appellant Sanchez in his request; appellant Roche in his request] was only aware that drugs were in the car but did not actually possess them then, without more, he would not be guilty of trafficking in cocaine. Haxho v. State, 186 Ga. App. 393 [(367 SE2d 282)] (1988).”

In Haxho, the appellant was travelling in the company of Luis Arbelaez, who was carrying cocaine in his pocket and billfold. The appellant had no cocaine on his person, and both he and Arbelaez testified appellant had no knowledge of the cocaine in Arbelaez’s possession. We noted that “[o]ther than circumstantial evidence that appellant may have known that Arbelaez was in possession of cocaine, there was no proof of any criminal participation by appellant in Arbelaez’s possession of cocaine.” Id. at 394. Conversely, in the case sub judice, neither appellant admitted possession of the cocaine, but instead both testified they had no knowledge of the cocaine in the car. Further, unlike in Haxho, the State produced direct testimony by Bounds and another employee at the repair shop who saw or overheard appellants arguing over how to hide the contraband while they were away from the vehicle.

“ ‘The trial court did not err in refusing to give the charge. “A jury charge is properly refused where it is not authorized or adjusted to the evidence adduced at trial. [Cit.]” [Cit.]’ [Cit.]” Williams v. State, 192 Ga. App. 350 (385 SE2d 28) (1989).

3. Appellants were indicted for the offense of trafficking in cocaine, OCGA § 16-13-31, in that appellants “did unlawfully then and there knowingly deliver and actually possess more than 28 grams of cocaine.” (Emphasis supplied.) The record reveals that appellants were arrested and indicted some six months after the effective date of the amendment to OCGA § 16-13-31 (a) (1), which deleted the requirement of “actual” possession, leaving only that of “knowing” possession of contraband. Ga. L. 1988, p. 420, § 2. In accord with the State’s request, the trial court charged the jury that they would be authorized to convict appellants if they found “beyond a reasonable doubt, that [appellants] knowingly had actual or constructive possession, either alone or jointly with others” of the cocaine. (Emphasis supplied.)

Appellants contend that the inclusion in the indictment of “actually” to modify “possess” constituted a material averment as to the manner in which appellants were knowingly in possession of the cocaine. They do not (nor, under the evidence set forth above, could they) assert that the State failed to prove the allegation in the indictment that they had actual possession of the cocaine. Rather, appellants contend that the trial court erred by instructing the jury that they could find appellants guilty of trafficking in cocaine if they found appellants possessed the cocaine in a manner not set forth in the indictment, namely, in constructive possession thereof. Appellants specifically challenged that part of the above charge regarding constructive possession during the charge conference reported in the transcript and argued to the trial court that it should limit its instruction to a charge solely on actual possession. The trial court overruled, appellants’ objection. We reverse.

“In criminal law an unnecessarily minute description of a necessary fact must be proved as charged; but an unnecessary description of an unnecessary fact need not be proved.” (Punctuation omitted.) Walker v. State, 146 Ga. App. 237, 241 (246 SE2d 206) (1978). The law recognizes two kinds of possession: actual possession and constructive possession. Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). Thus, while OCGA § 16-13-31 (a) (1) requires only “knowing” possession of contraband by an accused, “knowing” possession is proved by showing either actual possession or constructive possession. See, e.g., Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989). Because a conviction under OCGA § 16-13-31 (a) (1) would be authorized by proof of either actual or constructive possession, the inclusion in appellants’ indictment of a description of the manner in which a material element of the charge was committed (i.e., that the cocaine was “actually” possessed by appellants) constituted an unnecessarily minute description of a necessary fact. Accordingly, we cannot agree with the State’s argument that because OCGA § 16-13-31 (a) (1) requires only “knowing” possession of contraband, the reference in the indictment to actual possession was not a material averment but was mere surplusage. Compare Moran v. State, 170 Ga. App. 837, 841 (2) (318 SE2d 716) (1984) (for charge of trafficking in cocaine State not required to allege or prove defendant had intent to distribute cocaine; thus, language of “intent to distribute” in indictment mere surplusage).

“In criminal prosecutions the court’s instructions to the jury must be tailored to fit the charge in the indictment and the evidence admitted at trial. [Cits.]” Walker, supra at 244 (2). Here, appellants were indicted by the grand jury for “actually possess[ing]” cocaine but the instructions by the court permitted them to be convicted on proof that they constructively possessed cocaine. “[I]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner. [Cits.]” Owens v. State, 173 Ga. App. 309, 312 (4) (326 SE2d 509) (1985). Because the trial court did not withdraw the charge or otherwise give appropriate limiting instructions to the jury before a verdict was returned, compare Mathews v. State, 176 Ga. App. 394-395 (4) (336 SE2d 259) (1985), giving the challenged instruction to the jury constituted reversible error.

Judgments reversed.

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

Carley, Chief Judge,

concurring specially.

I agree with the majority’s conclusion as set forth in Division 3 that the conviction must be reversed because the trial court charged on constructive possession when the indictment alleged only actual possession. If we were writing on a clean slate, I would opine that the error in so charging would be harmless in this case because the evidence would authorize the jury to find only “actual” possession. There is no evidence upon which to base a finding of “constructive” possession. However, in Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), this same position was taken by Justice Weltner in his dissent and did not prevail. Therefore, we are constrained to hold that the error was harmful requiring reversal.

In Division 1, the majority finds that the trial court did not err in denying the motion to suppress. I concur. However, I cannot agree with the rationale employed by the majority. The majority holds that the search was authorized as an inventory search because “the arresting officer had probable cause to arrest both appellants for violation of the statute for which they were ultimately convicted.” (Majority opinion, p. 472.) I do not believe that the arresting officer had probable cause to arrest appellants for possession of contraband at the time that the car was stopped. All the officer knew at that tinie was that there had been a telephone call from the owner of a repair shop who had informed a police officer that he had heard the occupants of the car talking about “dope” and that said auto repair shop owner had observed the occupants of the car place a plastic garbage bag in the trunk of the car. As the majority has correctly held, the officer had probable cause to stop the car based upon that information and the apparent absence of a license plate. However, that information is certainly not sufficient to constitute probable cause to arrest for possession of contraband. Nevertheless, I agree that the motion to suppress was correctly denied because the information above recited was sufficient to authorize the search of a moving motor vehicle pursuant to the doctrine of Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925). See also State v. Bradley, 138 Ga. App. 800, 802 (2) (227 SE2d 776) (1976).

I am authorized to state that Presiding Judge McMurray joins in the portion of this special concurrence dealing with Division 3 of the majority opinion.

Decided October 17, 1990

Rehearing denied November 6, 1990

Maloy & Jenkins, W. Bruce Maloy, Barry W. Bishop, for appellants.

Garry T. Moss, District Attorney, C. David Gafnea, Assistant District Attorney, for appellee.


text:
    A90A0905.
    FELKER v. FENLASON et al.
    (398 SE2d 754)
   Carley, Chief Judge.

Appellant-plaintiffs William and Mary Porter brought suit against appellee-defendants Eugene Dorsey and Imogene Fenlason and two other defendants who are not parties to this appeal. The Porters’ complaint alleged alternative claims for breach of contract and for fraud. After filing answers and engaging in discovery, Dorsey and Fenlason moved for summary judgment. The motion was denied and the case proceeded to trial before a jury. At trial, Dorsey and Fenlason moved for a directed verdict. The motion was granted as to the Porters’ fraud claim and the case was submitted to the jury only as to the Porters’ breach of contract claim. The jury returned a verdict in favor of the Porters and judgment was entered on that verdict. Within 45 days, Dorsey and Fenlason moved pursuant to OCGA § 9-15-14 for the assessment of attorney’s fees jointly against the Porters and the Porters’ counsel, appellant Joseph Felker. Insofar as is relevant to this appeal, the motion for attorney’s fees was predicated upon the alleged lack of substantial justification of the Porters’ fraud claim. After conducting a hearing and finding that the Porters’ fraud claim did lack substantial justification, the trial court granted Dorsey’s and Fenlason’s motion and awarded them $750 in attorney’s fees.

Felker applied to this court for a discretionary appeal from the award of OCGA § 9-15-14 (b) attorney’s fees to Dorsey and Fenlason. This application was granted and the instant appeal results from Felker’s filing of a timely notice of appeal.

1. The first issue to be resolved is the scope of the instant appeal. The record shows that the two defendants in the underlying action other than Dorsey and Fenlason also moved pursuant to OCGA § 9-15-14 for the assessment of attorney’s fees against the Porters and that the trial court did award attorney’s fees to these other two defendants. However, it was only Dorsey’s and Fenlason’s motion that had sought OCGA § 9-15-14 attorney’s fees jointly against the Porters and Felker. Accordingly, Felker would have no standing to appeal from the award to the other two defendants of attorney’s fees solely as against the Porters. He has standing only to appeal from the award to Dorsey and Fenlason of $750 attorney’s fees jointly as against the Porters and himself. “ ‘It has, we believe, ever been the law, both in this State and in other jurisdiction^], that a party not aggrieved by the judgment of a trial court is without legal right to except thereto, since he has of it no just cause of complaint. . . . “In legal acceptation, a party is aggrieved by a judgment or decree when it operates on his rights of property, or bears directly upon his interest.” [Cits.] . . .’ [Cits.]” Walker v. Hartford Acc. & Indem. Co., 196 Ga. 361, 364 (26 SE2d 695) (1943).

Decided October 18, 1990

Rehearing denied November 6, 1990

It follows that our jurisdiction in the instant appeal does extend to a review of the $750 award of OCGA § 9-15-14 attorney’s fees to Dorsey and Fenlason as against the Porters and Felker jointly. Although it was only Felker who pursued the instant appeal, the Porters, who are jointly aggrieved by that award, are parties herein by virtue of OCGA § 5-6-37. However, insofar as the awards of OCGA § 9-15-14 attorney’s fees to the other two defendants are concerned, only the Porters, who are the sole parties aggrieved by those awards, would have standing to seek appellate review. Since the Porters themselves have not invoked the discretionary appeal procedure of OCGA § 5-6-35, our jurisdiction in the instant appeal does not extend to a review of those other two awards.

2. Although the jury found Dorsey and Fenlason liable on the Porters’ breach of contract claim, this would not necessarily serve to preclude the trial court from awarding OCGA § 9-15-14 (b) attorney’s fees to Dorsey and Fenlason based upon the alleged lack of substantial justification of the Porters’ fraud claim. In relevant part, OCGA § 9-15-14 (b) authorizes a trial court to assess attorney’s fees if “it finds that an attorney or party brought... an action, or any part thereof, that lacked substantial justification. . . .” (Emphasis supplied.) However, the trial court nevertheless did erroneously assess attorney’s fees because its previous denial of Dorsey’s and Fenlason’s motions for summary judgment as to the Porters’ fraud claim was “sufficient to constitute ‘a binding determination’ that [that claim] did not lack substantial justification so as to render it frivolous, groundless or vexatious.” Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 615 (379 SE2d 555) (1989). It follows that that award of OCGA § 9-15-14 (b) attorney’s fees against the Porters and Felker must be reversed.

Judgment reversed.

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

Raiford, Dixon & Thackston, Tyler C. Dixon, for appellant.

King, Taylor & Stovall, James F. Stovall III, Edward E. Carriere, William E. Mumford, Walter B. McClelland, for appellees.

William C. Porter, pro se.


author: Sognier, Judge.

text:
    A90A1029.
    McLENDON & COX v. ROBERTS.
    (398 SE2d 579)
   Sognier, Judge.

Xavier Roberts brought suit against McLendon & Cox, a landscape architecture firm, and five other parties involved in the construction of an adjacent manufacturing facility. Roberts, a neighboring landowner, sought both injunctive relief and damages as a result of an increase in the volume and velocity of storm water runoff flowing across his property, which he alleged caused an increase in siltation and erosion. McLendon & Cox moved to dismiss the claims against it on the ground that the action was a malpractice action as to it, and Roberts had failed to attach to his complaint the affidavit of an expert as required by OCGA § 9-11-9.1 (a). The trial court denied the motion, and we granted McLendon & Cox’s application for interlocutory appeal.

We reverse. Appellee correctly notes that as to some of the named defendants, the allegations in his complaint might sound in nuisance rather than negligence, and that negligence is not always a necessary element of a cause of action for nuisance. See City of Macon v. Cannon, 89 Ga. App. 484, 491-492 (3) (79 SE2d 816) (1954). In general, however, the owner of the property from which the nuisance emanates is the proper defendant in an action for damages flowing from the creation or maintenance of a nuisance. See generally OCGA § 41-1-5. Appellant does not own the property adjacent to appellee; it merely designed the landscaping of the property for the owner. Thus, in the case at bar, appellee’s claim against appellant necessarily is based upon an allegation that appellant’s work on the adjoining property was professionally deficient. That clearly categorizes appellee’s action against appellant as one for “damages alleging professional malpractice” within the ambit of OCGA § 9-11-9.1 (a) rather than one for the creation or maintenance of a nuisance under OCGA § 41-1-4.

OCGA § 9-11-9.1 applies to professional malpractice suits against architects. Housing Auth. of Savannah v. Greene, 259 Ga. 435 (1) (383 SE2d 867), aff’g Housing Auth. of Savannah v. Gilpin + Bazemore/Architects & Planners, 191 Ga. App. 400 (381 SE2d 550) (1989). Although OCGA § 9-11-9.1 does not define the term “action for damages alleging professional malpractice,” this court has held recently that the statute is not restricted to malpractice actions brought by plaintiffs who were clients of the professional, but extends to any litigant who alleges harm as a result of the defendant professional’s negligent performance of professional services. Jordan, Jones & Goulding v. Wilson, 197 Ga. App. 354 (398 SE2d 385) (1990).

Decided October 15, 1990

Rehearing denied November 6, 1990

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, for appellant.

Vaughan & Murphy, Stanley F. Birch, Jr., Jeanne B. Hipes, for appellee.

We thus find that the claims against appellant constituted an action for professional malpractice to which OCGA § 9-11-9.1 applies. Because there is no suggestion that appellee had the affidavit at the time he filed the complaint but failed to attach it because of a mistake, compare St. Joseph’s Hospital v. Nease, 259 Ga. 153 (1) (377 SE2d 847) (1989), OCGA § 9-11-9.1 (e) applies. Thus, appellee’s claim was subject to dismissal and his failure to comply with the statute was not an amendable defect. The Georgia Supreme Court’s recent decision in Kneip v. Southern Engineering Co., 260 Ga. 409 (395 SE2d 809) (1990) does not demand a different result, because when the instant action was filed, Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988); Padgett v. Crawford, 189 Ga. App. 568 (376 SE2d 724) (1988); Frazier v. Merritt, 190 Ga. App. 832 (380 SE2d 495) (1989); and Housing Auth. of Savannah v. Gilpin + Bazemore/Architects & Planners, supra, had been decided, and thus, unlike the situation in Kneip, supra, appellee was on notice that an affidavit was required. Accordingly, the trial court erred by denying appellant’s motion to dismiss the claims against it.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A90A1410.
    ALEWINE v. HORACE MANN INSURANCE COMPANY.
    (398 SE2d 756)
   Beasley, Judge.

David G. Barnes and Linzy Barnes filed identical tort actions against James G. Alewine, whose cow had escaped from its fenced enclosure on his property and collided with a car driven by David Barnes in which Linzy Barnes was a passenger.

Alewine sought coverage under his homeowner’s insurance policy with Horace Mann Insurance Company. Insurer sought a declaratory judgment to obtain a determination of its obligations under the insurance policy. A stay of the underlying tort claims was ordered pursuant to the consent of all parties.

Insurer denied liability, relying upon the language of the insurance contract, which excludes personal liability and medical payments to others “resulting from activities in connection with an insured’s business, except as provided under incidental liability and medical payments coverages.” The incidental liability and medical payments coverages also excludes liability resulting from “activities in connection with an insured’s business.” The policy defines business as “a trade, profession, or other occupation including farming, all whether full or part-time. ...”

Alewine asserts that the incidental business coverages exception to the business activity exclusion under the policy, which covers “activities in conjunction with business pursuits which are ordinarily considered non-business in nature,” applies because an escaping cow is non-business in nature. No definition accompanies the term “non-business in nature.” Alewine further relies upon the fact that insurer’s agent visited his home and observed his cows as proof of insurer’s intention to be bound by the terms of the insurance contract.

The trial court ultimately granted summary judgment in favor of insurer, stating the material undisputed facts, the applicable law, and its conclusions. This is most helpful and instructive. See Lewis v. Rickenbaker, 174 Ga. App. 371, 372 (1) (330 SE2d 140) (1985); Moore’s Fed. Practice, Vol. 6, Part 2, Par. 56.15 [7], p. 56-339. The trial court correctly decided that insurer was entitled to summary judgment.

Considering all evidence in the light most favorable to defendant, the party opposing the motion, Brakebill v. Hicks, 259 Ga. 849 (388 SE2d 695) (1990), no material question of fact was presented.

If the language is ambiguous, an insurance policy will be construed against the party preparing it and in favor of coverage. Rossville Fed. Savings &c. Assn. v. Ins. Co. of North America, 121 Ga. App. 435, 438 (2b) (174 SE2d 204) (1970). On the other hand, when the language is clear, an insurance policy is interpreted according to its plain language and express terms, just as any other contract. Georgia Farm Bureau Mut. Ins. Co. v. Fire &c. Ins. Co., 180 Ga. App. 777, 778 (350 SE2d 325) (1986). Once the language of the contract has been properly interpreted, the parties are bound by its terms. Id.

Alewine’s homeowner’s insurance policy excludes personal liability and medical payments to others which result from activities relating to his business. The policy definition of business explicitly includes farming. “Farming” includes raising, buying and selling cattle. Webster’s 9th New Collegiate Dictionary. The exclusion of personal liability and medical payments to others resulting from the business of farming is reasonable, and coverage under this policy cannot be extended beyond its plain terms. Salmon v. Commercial Union Ins. Co., 154 Ga. App. 8 (267 SE2d 273) (1980).

Decided October 18, 1990

Rehearing dismissed November 6, 1990.

McClure, Ramsay & Dickerson, John A. Dickerson, Martha B. Sikes, for appellant.

Carey, Deal, Jarrard & Walker, Christopher J. Walker III, James C. Weidner, for appellee.

Alewine concedes that keeping cows fenced is an activity related to the business of cattle farming. It naturally follows that an escaping cow is an activity incident to normal farming activities. The cases holding a certain activity to come within the exception providing coverage for business pursuits that are normally considered “non-business in nature” are factually distinguishable from Alewine’s case. Providing heat for a home in which a baby-sitter keeps children is clearly “non-business in nature,” in that the home would be heated whether or not baby-sitting activities were pursued. Nationwide Mut. Fire Ins. Co. v. Collins, 136 Ga. App. 671 (222 SE2d 828) (1975). But a prime purpose for providing and maintaining fences on a cattle farm is to prevent cows from escaping.

Insurer met its burden of proving that the facts fall squarely within the liability exception for activities related to the insured’s business.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1924, A90A1925.
    INTERNATIONAL SERVICE INSURANCE COMPANY v. HARTER; and vice versa.
    (398 SE2d 705)
   Beasley, Judge.

Tony Rodney Windom was driving a pickup truck which he did not own when he was involved in á multi-vehicle collision. He was killed and plaintiff Deborah Harter was injured. The pickup truck was insured by Cotton States Mutual Insurance Company and the uninsured motorist carrier for Deborah Harter’s car was defendant International Service Insurance Company.

By pretrial order, the parties agreed that the negligence and damages issues would be tried by jury and the insurance coverage issue would be tried by the court. International contended that it did not provide coverage. The jury returned a verdict of $15,000 for plaintiff Harter, thus finding fault on the part of Windom.

Decided September 20, 1990

Rehearing denied November 6, 1990

Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., for appellant.

The second phase of the trial commenced immediately, and Harter sought to prove that Cotton States did not insure against the collision because the truck had been stolen by Windom and the policy expressly excluded such situations. Harter did not have proper evidence but only affidavits of the owner and his wife plus hearsay evidence of ownership and lack of permission. Her counsel explained to the court that they had just learned in the last day that the stolen vehicle exclusion would be International’s defense and that it was abandoning its cancellation of the policy defense. He asked for permission to leave the record open to take the depositions of the owner and his wife, to be used as evidence, and the court acceded. Three times the court reiterated this. The last time was at the end of the proceeding, when the court said that Mr. Purvis should have been present “[b]ut, in the interest of arriving at the truth, I’m gonna give [plaintiff’s counsel] a chance to take his deposition.” No objection to this procedure was registered by defendant International, and the court recessed with the request that the parties advise the court whether another hearing would be needed.

One week later the court entered a judgment which stated: “The above case having been tried by a jury on March 9, 1990, and the jury having returned a verdict in favor of the plaintiff in the amount of $15,000.00, it is hereby ordered and adjudged that the plaintiff recover from the defendant, . . ., the sum of $15,000 plus court costs.” Defendant filed a notice of appeal on April 16, and the two depositions were apparently taken on April 20.

Deborah Harter, the cross-appellant, has filed a “motion to remand to trial court for completion of trial.” It is patent that the judgment is not final, as it relates only to the jury verdict portion of the trial and does not determine the coverage issue. The court did not have the depositions for which it had left the record open, nor was there an opportunity for the hearing it offered. Thus the record was not closed.

No application for an interlocutory appeal was filed, nor was a certificate for immediate review obtained, pursuant to OCGA § 5-6-34 (b). Since what is appealed from is not a final judgment, so that it is not subject to direct appeal as provided by OCGA § 5-6-34 (a) (1), the appeal is premature and must be dismissed. The cross-appeal falls with it.

Appeals dismissed.

Deen, P. J., and Pope, J., concur.

Richard Phillips, for appellee.


author: Pope, Judge. Beasley, Judge,

text:
    A90A0747.
    SMITH et al. v. FEE et al.
    (398 SE2d 801)
   Pope, Judge.

Plaintiff Allen Daniel Smith, a minor, was injured when he was struck by a pick-up truck driven by defendant Jack Ross Fee, Jr., as Smith was crossing an intersection in Rossville. Smith and his parents brought an action in negligence against Fee and his father (pursuant to the family purpose doctrine) for Allen Smith’s injuries and other damages sustained as a result of his injuries. The pivotal fact at issue in the case is whether the incident was proximately caused by the negligence of Allen Smith in allegedly carelessly crossing the intersection or by the negligence of defendant Jack Ross Fee, Jr., in allegedly speeding through the intersection. Judgment was entered on the jury verdict for defendants and plaintiffs appeal.

Plaintiffs argue the trial court erred in permitting one of the investigating police officers to testify to his opinion regarding whether any act or omission of the defendant driver was a contributing cause of the incident. Over objection, the officer responded negatively to the question: “Based upon your investigation, . . . did you find any contributing factor, any action by [defendant driver] to contribute to this accident?” When asked what he determined to be the “contributing factor” for the incident, the officer responded: “[I]t appeared that [the victim] just stepped out in front of the truck.”

The admission of the testimony of the officer was erroneous because it related to the ultimate issue of defendant Jack Ross Fee, Jr.’s alleged negligence. The officer properly testified to facts he gathered at the scene of the accident and to his own observations. However, it was for the jury to consider this testimony and other evidence presented at trial and determine whether any acts or omissions of the defendant contributed to the cause of plaintiff’s injuries. “Negligence or no negligence was the very issue the jury were impanelled to try. It was the province of the jury to draw the conclusion that the defendant had been guilty [or not guilty] of negligence, and not the province of the witness, the [police officer].” Cone v. Davis, 66 Ga. App. 229, 235 (17 SE2d 849) (1941). See also Calhoun v. Chappell, 117 Ga. App. 865 (2) (162 SE2d 300) (1968).

Another officer who also investigated the incident and helped prepare the accident report with the officer mentioned above testified she reached “the same conclusions he did with respect to the report.” That no objection was raised to the second officer’s testimony does not make the admission of the objectionable testimony harmless error. The second investigating officer merely testified that she reached the same conclusions as did the first officer “with respect to the [accident] report.” The report itself was not submitted into evidence. The only testimony concerning the report related to facts and observations gathered by the investigating officers at the scene. Therefore, what “conclusions,” if any, were contained in the report is unknown and is not at issue in the appeal. The erroneously admitted testimony concerning the first officer’s opinion as to contributing cause did not refer to the accident report. Instead, the testimony was given in response to a question concerning the officer’s “investigation.” The second officer was questioned only in regard to the conclusions contained in the accident report. She was not asked whether she agreed with the testimony at issue in this appeal, i.e., her fellow officer’s general opinion as to contributing cause. Thus, it cannot be said that plaintiffs waived their objection to the first officer’s improper testimony by failing to raise an objection to the second officer’s testimony that she agreed with the conclusions reached in the accident report.

Judgment reversed.

Deen, P. J., and Beasley, J., concur specially.

Beasley, Judge,

concurring specially.

I concur because the record is not altogether clear as to what the witness was referring to when she said she reached the same conclusions the other officer did. The questions came in the context of her describing what she saw and did when she arrived at the scene. After she testified that they situated the little boy and talked to the people who had seen the incident, she was asked:

“Q. We have already had Officer Linder testify, and I won’t go through all of that again. Let me just ask you this, did you and Officer Linder prepare your report together concerning this?
“A. Yes, sir.
“Q. And so far as working with him, did you reach the same conclusions he did with respect to the report?
“A. Yes, sir.”

If the conclusions regarding the cause of the incident were in the report or she had been present in the courtroom and had heard his testimony regarding conclusions so that her answer adopted them, then the lack of objection would make the erroneous admission of Linder’s conclusions harmless. That is the result of the admission of opinion evidence of similar substance, unobjected to Andrews v. Major, 180 Ga. App. 393, 395 (2) (349 SE2d 225) (1986).

On the other hand, if the report did not contain the conclusions Linder gave, or the second officer had been sequestered when Linder testified, then there would have been no occasion for the objection.

Decided November 6, 1990.

Gleason & Davis, John W. Davis, Jr., for appellants.

Watson & Dana, Dennis D. Watson, for appellees.

We do not have the police report and thus do not know its contents. We are not authorized to assume that the second officer’s testimony encompassed Linder’s conclusions as to cause. Thus I agree that the error as to his testimony was not rendered harmless by the later testimony.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.


text:
    A90A0921.
    ANDREWS v. THE STATE.
    (398 SE2d 803)
   Pope, Judge.

Appellant Tracy Andrews was convicted of trafficking in cocaine and possession of a firearm during the commission of a felony. He was sentenced to serve a total of 25 years and was’ fined $100,000.

Andrews was stopped for speeding by Officer Villafane of the City of Atlanta police. After failing to produce either a driver’s license or proof of insurance, Andrews was placed under arrest. A pat-down search of Andrews after his arrest revealed a substance concealed in plastic bags inside his shorts and in his pockets which later proved to be 32.3 grams of 87 percent pure cocaine. A search of the car revealed a pistol hidden under the front seat on the passenger side of the car, a beeper and cash in the amount of $2,070. Police found an additional $123 on Andrews.

1. Andrews argues the trial court erred in denying his. motion to dismiss the case because of prosecutorial misconduct. The record shows that an assistant district attorney approached Andrews at a preliminary hearing and attempted to negotiate a plea bargain with him at a time when she knew or should have known that Andrews was represented by counsel. Andrews refused to negotiate and told her he would do nothing without his lawyer, who was late for the hearing. No bargain was ever made and the case proceeded to trial. The trial court acknowledged that the conduct by the assistant district attorney was improper, but found that no harm was done and therefore denied the motion to dismiss. On appeal, Andrews has not shown any harm nor can we find any in the record before us. The trial court did not err. See United States v. Morrison, 449 U. S. 361 (101 SC 665, 66 LE2d 564) (1981).

Decided November 6, 1990.

Lawson, Washington & Thornton, Charles S. Thornton, for appellant.

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

2. Andrews argues the trial court’s charge on circumstantial evidence was error. The trial court charged as follows: “Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may infer other related or connected facts which are reasonable and justified in the light of your experience.” This charge, read in light of the charge as a whole, was sufficient. See Terrell v. State, 258 Ga. 722 (3) (373 SE2d 751) (1988).

3. Andrews argues the trial court committed error in overruling his motion for mistrial after the State elicited testimony from Officer Villafane about Andrews’ statement to Villafane that he did not know anything about the gun found in the car. Andrews argues that the statement was not provided to him pursuant to his OCGA § 17-7-210 request. We find no error. The statement was not inculpatory and thus was not required to be produced by OCGA § 17-7-210. See Holland v. State, 190 Ga. App. 169 (1) (378 SE2d 513) (1989).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A1115, A90A1119.
    AMMARI v. SOHN et al. (two cases).
    (398 SE2d 804)
   Cooper, Judge.

This opinion involves two separate appeals, both originating from the same set of facts. In late December 1987, Ammari brought an amethyst gemstone to a jewelry store owned and operated by Sohn and requested Sohn to add a mounting of gold and diamonds to the amethyst. Ammari testified that he left the amethyst with Sohn after receiving assurances that the stone would be kept in the store safe until the work was completed. In late January 1988, a large group of people converged upon the jewelry store with the intention of diverting the attention of the store employees. During the several minutes that the people were in the store, one person obtained entry to the room where the safe was located, opened the day lock on the safe with the safe key and took several items in the safe, including Ammari’s amethyst. Ammari was notified of the theft in March and a dispute between Ammari and Sohn ensued as to the true value of the stone, with the estimated values ranging from $450 to $6300. Ammari filed suit against Sohn individually and the entities in which Sohn was doing business, and in an amended complaint, alleged that the defendants failed to use ordinary care and diligence to safeguard the stone, failed to promptly inform Amari of the theft and failed to acknowledge and pay to Ammari the fair market value of the stone. Ammari charged that the defendants breached their duties as bailees, acted in bad faith and defrauded Ammari of the full value and use of the stone. At trial, Ammari argued that his complaint advanced two separate claims, a bailment claim based on the negligence of the defendants, and a fraud claim, based on the failure to promptly inform Ammari of the theft and Ammari’s allegations that Sohn represented to him that the stone would be insured for $1500 while in his store, which insurance was not in fact obtained. At the close of the evidence, the trial court directed a verdict on the bailment claim in favor of Sohn and the defendants, finding that Ammari had not presented any evidence that the defendants had been negligent in safeguarding the stone. The court allowed the fraud claim to go to the jury, and a verdict for $2000 was rendered in favor of Ammari. Sohn and the other defendants filed Case No. A90A1119, appealing the verdict on the fraud claim and the court’s ruling allowing the issue of fraud to be sent to the jury, and Ammari filed Case No. A90A1115, appealing the grant of directed verdict on the bailment claim.

Case No. A90A1115

1. Appellees, Sohn et al., first move to dismiss this appeal on the grounds that appellant, Ammari, failed to file a cross-appeal after appellees first filed their appeal. Appellees alleged that appellant was required to file a cross-appeal, therefore appellant’s independent appeal is not properly before this court. OCGA § 5-6-38 (a) gives an appellant the right to file a cross-appeal, yet specifically preserves an appellant’s option to file an independent appeal. The motion to dismiss is without merit and is denied.

2. Appellant’s sole enumeration of error is that the court erred in granting appellees’ motion for a directed verdict. When the existence of a bailment is uncontroverted, “after proof of loss by the bailor, the burden of proof is on the bailee to show proper diligence.” OCGA § 44-12-44; Rhodes v. Duarte, 142 Ga. App. 885 (237 SE2d 212) (1977). The burden referred to in the statute is the burden of introducing evidence or of going forward with the evidence. Deloach v. Automatic Transmission & Brake Shop, 106 Ga. App. 797, 799 (128 SE2d 512) (1962). Once the bailee shows the required standard of diligence, “the burden of going forward with the evidence shift[s] to the [bailor] who then ha[s] the burden of producing evidence to show negligence on the part of the [bailee].” Rhodes, supra at 886; Deloach, supra at 800. We agree with the trial court that, based on the evidence adduced at trial, appellees met their burden of producing evidence showing compliance with ordinary care and diligence to protect the stone. However, once this burden was met and the burden again shifted to appellant, appellant did not produce evidence to show the negligence of appellees. At trial, Sohn testified that the store’s safe was on a day lock, which required a key to open; that the safe itself was located in a separate locked room; and that the key to the safe was kept on a shelf to the side of the safe, within arm’s reach, but not in plain view. An employee of appellees who was present at the time of the robbery testified that the door to the safe room was typically kept locked and one needed a key to get in the room; and that the key to the safe was kept on the shelf out of sight. Sohn’s wife, also an employee at the time of the robbery, testified that the safe was on a day lock; that the safe room door was kept locked; and the key was kept on the back of the shelf so that she had to reach back to get it. Appellees’ expert witness, a former employee of appellees and a person familiar with the general security practices of the jewelry business, testified that his knowledge of appellees’ general practices in safeguarding property complied with maximum security procedures. Finally, appellant’s expert witness testified that a day lock is appropriate, and although some jewelry stores keep the key to the day lock in a separate room, if it is kept in a place not plainly visible, then proper safety procedures were maintained; and that if the room to the safe is locked, then extra precautions have been taken. Appellant contends that negligence was shown by the employees’ testimony that they did not see marks on the door to the safe room or any other evidence indicating that the door had been tampered with, and by Sohn’s testimony that the theft occurred in a very short period of time. Appellant asserts that this evidence negates the testimony that the door to the safe room was kept locked and that the key was not plainly visible. Appellant presented no evidence that appellees’ general practices or the practices on the day of the robbery were not ordinarily prudent; presented no evidence that a door and lock such as were on the room to the safe could not have been violated, if locked, without evidence of tampering; and presented no evidence to support his claim that there were not enough sales people in the store at the time of the robbery. In the absence of competent rebuttal evidence by the appellant, a directed verdict was proper because appellant “simply failfed] to prove his case.” Quinones v. Maier & Berkele, 192 Ga. App. 585, 587 (1a) (385 SE2d 719) (1989).

Case No. A90A1119

The appellants herein, Sohn et al., appeal the verdict and the $2000 judgment on the fraud claim and assert that the fraud issue should not have been sent to the jury at all. “[W]e are . . . unable to reach the merits of any error enumerated, because we conclude that the appeal is one which must be brought pursuant to the discretionary review procedures of OCGA § 5-6-35.” MTW Investment Co. v. Vanguard Properties Fin. Corp., 179 Ga. App. 403, 405 (346 SE2d 575) (1986). “Under OCGA § 5-6-35 (a) (6), it is the amount of the underlying final judgment from which an appeal is taken, not the enumerations of error, which determines the direct or discretionary appealability of any given case. ‘By its own terms OCGA § 5-6-35 (a) (6) applies when there is an action for damages and the result is a judgment of $2,500 or less. (Cit.) We interpret this to mean that an application is required when a party seeking a money judgment prevails, that is(,) a judgment for some sum is obtained but the award is $2,500 or some lesser sum.’ [Cit.]” Ostrom v. Kapetanakos, 185 Ga. App. 728, 729 (1) (365 SE2d 849) (1988).

Decided November 6, 1990.

Stewart, Melvin & House, J. C. Highsmith, Jr., for appellant.

Robert E. Andrews, G. Donald Pulliam, for appellees.

Judgment affirmed in Case No. A90A1115. Appeal dismissed in Case No. A90A1119.

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


text:
    A90A1259.
    WHATLEY v. THE STATE.
    (398 SE2d 807)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the following crimes: conspiracy to traffick in cocaine; trafficking in cocaine; and, use of a communications facility in the commission or facilitation of trafficking in cocaine. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellee’s motion to dismiss this appeal is denied.

2. Although appellant filed a pre-trial motion to suppress, his enumeration of error challenging the denial of that motion has not been supported either by citation of authority or by argument. Accordingly, this enumeration of error is deemed to have been abandoned pursuant to Rule 15 (c) (2) of this court.

3. Several of appellant’s enumerations of error relate to an alleged violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) occasioned by the State’s failure to disclose two pre-trial statements that had been made by a co-indictee. It appears, however, that neither statement of the co-indictee is exculpatory of appellant. One is clearly inculpatory and the other is merely non-inculpatory in that appellant’s name was not specifically mentioned therein. However, even assuming that either of the co-indictee’s two statements could be considered exculpatory of appellant, there was no Brady violation because both were disclosed at trial. “[T]he mandate of Brady is not violated, when the ‘material is (made) available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. (Cits.)’ [Cit.]” Assad v. State, 195 Ga. App. 692, 693 (1) (394 SE2d 617) (1990).

4. A Spanish-speaking co-indictee was called as a witness for the State and testified on direct and cross-examination through an interpreter. Subsequently, appellant sought to recall the co-indictee for further cross-examination. Contrary to appellant’s assertions, the trial court did not refuse to allow the co-indictee to be recalled. The trial court merely informed appellant that, if the co-indictee was to be recalled, he would have to be reaccompanied by an interpreter. “The use of an interpreter, and the extent to which the examination will be allowed to proceed through him must necessarily lie within the sound discretion of the trial judge.” Hensley v. State, 228 Ga. 501 (1) (186 SE2d 729) (1972).

5. On cross-examination of a witness for the State, appellant elected to pursue the topic of the issuance of judicial authorization for a wiretap. The District Attorney began his redirect examination of the witness by making the following comment: “[Wje’ve already had a motion to suppress hearing on this particular. . . .” Appellant objected to this comment and moved for a mistrial. The trial court denied the motion but gave curative instructions. On appeal, appellant enumerates the denial of his motion for mistrial as error.

A defendant is entitled to have a hearing on his motion to suppress conducted outside the presence of the jury. However, appellant has cited no authority for the proposition that the jury is, under no circumstances, to be informed that a motion to suppress has been made and a hearing held. This court has previously held that, under circumstances similar to those which exist in the instant case, the challenged comment of the District Attorney would not be grounds for either a mistrial or curative instructions. Sims v. State, 165 Ga. App. 881, 883 (5a) (303 SE2d 60) (1983); Arnold v. State, 155 Ga. App. 581, 582 (3) (271 SE2d 714) (1980). In any event, the trial court did give curative instructions in the instant case and appellant did not thereafter renew his motion for mistrial. Accordingly, this enumeration of error is clearly without merit. Glass v. State, 181 Ga. App. 448 (2) (352 SE2d 642) (1987).

6. Since appellant was charged with conspiring with others to traffick in cocaine, it obviously was not error for the trial court to charge on constructive as well as actual possession. The jury was otherwise adequately instructed that appellant could not be found guilty based upon proof of possession of the cocaine by his co-indictees unless he had conspired with them to traffick in that cocaine.

Decided November 6, 1990.

John E. Sawhill III, for appellant.

Stephen F. Lanier, District Attorney, H. Harold Chambers, Jr., Leigh E. Patterson, Assistant District Attorneys, for appellee.

7. Since appellant was convicted of trafficking in cocaine, his conviction and sentence for conspiracy to traffick in cocaine cannot stand. Hardin v. State, 172 Ga. App. 232, 234 (1) (322 SE2d 540) (1984).

The judgments of conviction and sentences for trafficking in cocaine and the use of a communications facility in the commission or facilitation of trafficking in cocaine are affirmed. The judgment of conviction and sentence for conspiracy to traffick in cocaine are reversed.

Judgments affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge.

text:
    A90A1324.
    PHILLIPS v. THE STATE.
    (398 SE2d 234)
   McMurray, Presiding Judge.

Defendant was charged via a Georgia Uniform Traffic Citation with violating OCGA § 40-6-391, driving under the influence of alcohol. The case was tried before a judge in the Recorder’s Court for the City of Warm Springs, Georgia. At the conclusion of the State’s evidence, defense counsel moved for a directed verdict of acquittal based on insufficient evidence. This motion was denied. In his closing argument, defense counsel again pointed out the lack of evidence to sustain a conviction. The trial court responded as follows:

“THE COURT: Mr. Brown, what I’m going to do in this case is I’m going to bind it over to Superior Court and let the City take it to Superior Court where they will have some representation. I’m suppose to be neutral in this, and I understand the officers not knowing how to prosecute these cases. . . . I’m going to . . . let it go to Superior Court and then . . . [t] he City will be represented.
“[DEFENSE COUNSEL]: Your Honor, I would — Well, I would disagree with that ruling for the following reason[:] . . . Once a witness has been sworn and testimony has been taken ... in the trial of this case, it is at that point a violation of double jeopardy to bind the case over, and with that in the record, of course, I will rest and respectfully disagree with your ruling.
“THE COURT: You know, I don’t have any problem with you disagreeing on my ruling. That’s what they have a higher court for is to tell me whether I’m right or wrong, and so what I’m going to do is I’m going to bind it over to the Superior Court and let it go from there. . . .”

Defendant was later charged via accusation in the Superior Court of Meriwether County for driving under the influence of alcohol. The facts supporting this accusation were the same as those which supported the charges prosecuted in the Recorder’s Court for the City of Warm Springs, Georgia. Less than one week after the filing of the accusation, defendant filed a “MOTION TO DISMISS AND PLEA IN BAR,” arguing that he has twice been placed in jeopardy for the same offense. The superior court denied the motion and this appeal followed. Held:

1. Defendant contends the superior court erred in denying his motion to dismiss and plea in bar.

“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.” Constitution-of the State of Georgia of 1983, Article I, Section I, Paragraph XVIII. “A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution . . . [w]as terminated improperly ... in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts. . . .” OCGA § 16-1-8 (a) (2). However, “[a] prosecution is not barred ... if [t]he former prosecution was before a court which lacked jurisdiction over the accused or the crime. . . .” OCGA § 16-1-8 (d) (1).

In the case sub judice, there is no dispute that the Recorder’s Court for the City of Warm Springs was vested with authority to try defendant for violating OCGA § 40-6-391, driving under the influence of alcohol. (See Kolker v. State, 260 Ga. 240, 242 (391 SE2d 391), where it was determined that the Recorder’s Court of the City of Chamblee was constitutionally authorized to exercise subject matter jurisdiction over state traffic offenses as provided by OCGA § 40-13-21 (a).) Further, the recorder’s court judge terminated defendant’s trial after the first witness was sworn, but before findings were rendered by the trier of facts. Consequently, we must determine whether the recorder’s court judge “improperly” terminated defendant’s trial in referring the case to the superior court.

OCGA § 16-1-8 (e) provides as follows: “Termination under any of the following circumstances is not improper: (1) The accused consents to the termination or waives by motion to dismiss or other affirmative action his right to object to the termination; or (2) The trial court finds that the termination is necessary because: (A) It is physically impossible to proceed with the trial; (B) Prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant; (C) The jury is unable to agree upon a verdict; or (D) False statements of a juror on voir dire prevent a fair trial.”

In the case sub judice, we find nothing in the record to indicate that defendant consented to the premature termination of his trial in the recorder’s court, nor do we find evidence that defendant waived his right to object to the termination. On the contrary, the record shows that defense counsel vigorously objected to the recorder’s court judge’s decision to bind the case over to the superior court and that defense counsel promptly challenged the superior court accusation based on double jeopardy grounds. Further, the recorder’s court judge did not terminate defendant’s trial for a reason of necessity enumerated in OCGA § 16-1-8 (e) (2). He terminated the case so that “[t]he City will be represented.” This was improper and resulted in an acquittal of defendant by operation of law. Jordan v. State, 75 Ga. App. 815, 818 (44 SE2d 821). Consequently, the superior court erred in overruling defendant’s plea of former jeopardy (“MOTION TO DISMISS AND PLEA IN BAR”).

2. Defendant next contends that “[t]he Honorable Allen B. Keeble[, the presiding superior court judge in the case sub judice,] was not empowered to decide this case because he was not legally elected as a Superior Court Judge.” More specifically, defendant contends that Judge Keeble “holds one of the judgeships which were ruled to have been illegally created in violation of Section 5 of the Voting Rights Act [42 USC § 1973c] by the United States Justice Department. . . .”

Defendant offers no evidence or authority to support this enumeration. However, we recognize that a three-judge panel of the United States District Court for the Southern District of Georgia entered a memorandum opinion and order in Brooks v. State Bd. of Elections, Case No. CV288-146 (S.D. Ga. 1990), holding that section 5 of the Voting Rights Act of 1965, which requires preclearance from the United States Attorney General before any voting practice in effect on November 1, 1964, can be modified, applies to the addition of judgeships and redistricting of judicial circuits in Georgia. We also recognize that the Brooks order is directed to several Georgia superior court judgeships, but note that the district court’s decision does not remove from office those judges in affected positions, nor does the panel’s decision give grounds for voiding the affected judges’ authority. On the contrary, the three-judge panel stated “that the validity of the actions taken by these judges is in no way implicated by our decision” and extended terms of affected judgeships so as to maintain stability and order within the State’s judiciary. Consequently, even assuming that Judge Keeble was an affected judge in the Brooks case, we find nothing which voids his decision in the case sub judice. This enumeration is without merit.

Decided November 6, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

William G. Hamrick, Jr., District Attorney, Tyron C. Elliott, Assistant District Attorney, for appellee.

Judgment reversed.

Sognier, J., concurs. Corley, C. J., concurs in Division 1 and in the judgment.