author: Blackburn, Presiding Judge. Eldridge, Judge,

text:
    A00A0681.
    MONTERO v. THE STATE.
    (537 SE2d 429)
   Blackburn, Presiding Judge.

On interlocutory grant, Angel Samuel Montero appeals the trial court’s denial of his motion to suppress evidence of marijuana found in a closed container in the trunk of his car following a routine traffic stop for tinted windows. Because this case is controlled by DiSanti v. State, not Boggs v. State, we find that the officer who stopped Montero’s vehicle had no probable cause to detain Montero while he obtained the services of a drug dog to investigate the sealed package in the trunk for which Montero had withdrawn consent to search. Accordingly, we reverse.

In DiSanti, supra, the defendant was initially stopped for speeding. After the officer issued a warning, he asked the defendant if he could search his car, and DiSanti consented. The officer found a package wrapped in birthday paper in the trunk of the car. DiSanti explained that the package was a gift for his daughter. The officer then told DiSanti that he believed the package contained cocaine and asked if he could open it. DiSanti refused to let the officer open the package. The officer told DiSanti he was going to detain him until a drug dog arrived on the scene. When the drug dog arrived an hour later, cocaine was found in the package.

Reversing the trial court’s denial of the defendant’s motion to suppress, we held:

It is recognized that no “bright line” rule or “rigid time limitations” can be imposed in determining whether detention of a person constitutes a mere investigative stop requiring only an articulable suspicion or an arrest requiring the existence of probable cause at its inception. United States v. Sharpe, 470 U. S. 675, 685 (105 SC 1568, 84 LE2d 605) [(1985)]; United States v. Hardy, 855 F2d 753, 759 (11th Cir. 1988). Nevertheless, this court recently has held that it would stretch the imagination to say that a 30-minute detention was justifiable, under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) [(1968)], when the officer waited for the arrival of a drug dog and magistrate and the defendant was not free to leave. Schmidt v. State, 188 Ga. App. 85, 87 (372 SE2d 440) [(1988)].

DiSanti, supra at 334 (1).

In stark contrast to DiSanti is Boggs, supra. In Boggs, the defendant consented not only to the initial search of the car by the officer but also to a subsequent search by a drug dog. Thus, in Boggs, unlike DiSanti, the drug dog search and the detention therefore were consensual. We note that Boggs did not raise the issue of the propriety of a police officer detaining a defendant to seek permission to search his vehicle after the investigation for which the stop was made has been concluded. Therefore, this issue and its factual variants were not addressed in that case. Montero does not raise that issue here, and therefore, it is not before us in this case. We note, however, that police officers are not generally free to detain private citizens without probable cause where an investigatory stop has been concluded without charges, and the detained citizen is free to go, without further interference or detention by the police officer. See Terry v. Ohio.

On appellate review of a motion to suppress, the trial court’s findings as to disputed facts are accepted by the appellate court, unless clearly erroneous. However, where the evidence is undisputed and there is no question regarding the credibility of witnesses, the trial court’s application of law to those undisputed facts is subject to de novo review. Vansant v. State. In this case, the relevant facts are undisputed, so we conduct a de novo review.

The facts of the present case are similar to DiSanti, not Boggs. At 1:25 p.m. on November 4, 1997, Montero was driving his car on Interstate 20 in Columbia County when he was stopped by Officer Flury of the Georgia State Patrol. Flury testified that he suspected that the car windows were too darkly tinted. Flury did not cite Montero for a violation following his investigation of the tinted windows but gave Montero a warning for the window tint and returned his license, thereby terminating the purpose and scope of the original stop. At this point, Montero was free to go, and Officer Flury had no authority to stop or detain him, absent probable cause arising from occurrences since the termination of the concluded investigation, or new facts related thereto.

However, Officer Flury then detained Montero, interrogated him further, and asked him if he could search the car and its contents. When asked why he made this request, Flury testified that, in general, drugs were being transported down I-20 and the State Patrol had been conducting searches of cars stopped by them. Flury had no probable cause or reasonable and articulable suspicion that Montero was transporting contraband at that time. To the contrary, the reasoning behind the request to search, as testified to by Officer Flury, was to carry on a general plan to search the cars of private citizens when they are stopped by police officers for unrelated reasons, in an attempt to interdict the transportation of drugs. While the interdiction of the flow of drugs is an admirable goal, the State is not free to ignore constitutional safeguards in order to accomplish it, and neither is this Court.

After obtaining Montero’s consent, Flury searched the passenger compartment of the car and found no contraband. He then searched the trunk, where he found a large brown cardboard box which was taped shut. Officer Flury testified that Montero began acting nervously and withdrew his consent to search the box. “When we got to that [box], he said we couldn’t search that.”

At that point, Flury had completed his search of Montero’s car, but he would not let Montero leave because he wanted to search the taped box as well. Flury stated, “We came up on an object that was — that he would not allow us to search, and I wanted to go further with the K-9.” Therefore, approximately 35 minutes after the initial stop for tinted windows began, Flury contacted an officer with the police K-9 unit who arrived approximately 20 minutes later. Almost an hour after Montero had been stopped for tinted windows, the drug dog indicated the presence of marijuana in the sealed box found in the trunk of Montero’s car.

Montero does not dispute the validity of the initial stop of his car, notwithstanding the fact that there is no conclusive evidence in the record that his car windows were, in fact, too darkly tinted at the time of the stop. However, Montero argues that the scope of the initial stop was exceeded, he withdrew his consent to search the box in his trunk, and he was thereafter unlawfully detained. We agree.

Lacking even articulable suspicion, Flury arrested Montero without probable cause. Flury gave Montero a Hobson’s choice of either staying with his car until the K-9 unit arrived or being stranded on the interstate. Montero was thus no longer free to leave, and his detention, under these facts, “is not authorized by Terry v. Ohio, is thus an arrest, and must therefore be supported by probable cause at its inception to be legal.” Milan v. State

Flury’s only reasons for holding Montero were his nervousness, his own desire to search the box in Montero’s trunk, and the fact that, in general, contraband was being transported down 1-20. Many people show signs of nervousness during police encounters, and this Court has held that nervousness does not provide reasonable suspicion of criminal behavior as a matter of law. See State v. Kwiatkowski. Montero was as free to withdraw his consent to search his car in connection with the sealed box, as he was not to give such consent in the first place, and he had validly done so. See DiSanti, supra; Davidson v. State (“Once a voluntary consent is legally obtained, it continues until it is either revoked or withdrawn.”).

Citing Boggs, supra, the State argues that, although Montero refused permission to search the box, he did not withdraw consent to search the car and that the drug dog was called in to complete the search of the car. The testimony of Officer Flury, however, repudiates that argument and establishes that the search by the K-9 unit was prompted by Montero’s withdrawal of consent to search. Officer Flury testified that he had already completed a search of the passenger compartment and trunk of the car; he wanted to search the box. He further testified that he called for the K-9 unit specifically to search the sealed box, “He didn’t want us to touch the box. He didn’t want us to open the box, and that’s when I called for a K-9 unit.” He was asked, “At that time, you asked permission [to search the box] and he said no and that’s when you decided to call the dog; is that correct, sir?” Flury responded, “Yes, sir. . . . [H]e would not allow us to search [the box], and I wanted to go further with the K-9.” Under the above facts and law, Officer Flury had no authority to “go further with the K-9” at that point. The search of the car in this case was over long before a drug dog was called. And Montero, in direct violation of his Fourth Amendment rights, was detained by Officer Flury, who had no probable cause, while he called in a drug dog. Also, Officer Flury’s knowledge that drugs were being transported down I-20 provided no basis whatsoever to establish probable cause as to Montero.

Therefore, even viewing the totality of the circumstances, as the State urges us to do, the tinted windows, nervousness, and a withdrawal of a consent to a search are not sufficient to establish a reasonable suspicion of criminal conduct which would authorize additional investigation or the probable cause necessary to arrest Montero. The tinted windows hid nothing and provided no support for the State’s position. Nervousness is not sufficient to authorize the detention, and Montero had withdrawn his consent to search the car in connection with the sealed box, and the search of the remainder of the car had been completed. There was no basis to detain Montero, and the illegal arrest tainted the subsequent search. See Payne v. State.

The trial court erred by denying Montero’s motion to suppress.

Judgment reversed.

Barnes, Phipps and Mikell, JJ, concur. Johnson, C. J., Pope, P. J., and Eldridge, J., dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent.

When a motion to suppress is heard by a trial judge, the judge sits as the trier of facts and his findings will not be disturbed if there is any evidence to support them. This Court must construe the evidence most favorably to uphold the trial court’s findings and judgment.

In this case, there is no question that the stop of appellant Montero was valid. There is no question that Montero validly consented to the search of his car. There is no question that Montero did not consent to a search of the box in the trunk of his car. The only question is whether at the time Montero refused to let the State Trooper search the box, he also withdrew his consent to search the car.

The law regarding the withdrawal of consent in warrantless searches has developed in a piecemeal fashion. Though certain general principles are established, some gaps remain in our interpretation of the Fourth Amendment guarantees in this context. It is fundamental, however, that “[c]onsent may be as limited as the consenter wishes, and the search may not exceed the reasonably understood parameters.” While the validity of the consent obtained by Montero has not been questioned here, it is also a fundamental precept that “[w]hen consent to search is in issue, the State has the burden of proving the consent was freely and voluntarily given.”

While recognizing these important legal principles, the broad language of these cases did not intend the results which the majority reaches here; they arose out of different fact situations and applied to those specific contexts. This case, also, is fact specific, and a different legal principle controls. Here, the facts are controlled by the longstanding principle that “[o]nce a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.” And whether Montero withdrew his consent to search the car when he refused to allow the trooper to search the box is a factual determination for the trial court, based on the totality of the circumstances.

The trial court found that Montero did not withdraw his consent to search the entire car; he only denied access to the box. The court found that the drug dog was summoned within 15 minutes to accomplish an intensified search of the car; the fact that the dog then alerted on the box during the consensual search of the car provided the probable cause to search the box, regardless of Montero’s expressed desire that the box not be searched:

[Court:] When the dog alerted for drugs, that factor combined with the factors prompting the use of the drug dog in the first instance, which was consent to search, established probable cause to believe he was in possession of illegal drugs within his vehicle authorized the subsequent search of the interior. . . .
[Defense:] To a point, but then he says, No, the search is over. He can —
[Court:] I thought he said, No, you couldn’t search that box. . . .
[Defense:] So, I’m saying that’s correct.
[Court:] Okay.
[Defense:] So the search is over at that time.
[Court:] No, you just can’t search the box.
[Defense:] Okay.
[Court:] But you’ve still got a right to search around the car. . . . And it [Johnson v. State] says when the dog alerts that there’s drugs inside the car, or in some place that he’s refusing to allow them to search, that’s probable cause to search it. ... I think the issue is once you’ve given the right to search, I don’t disagree that he can then limit his search or he can totally stop the search. My information, or the evidence I got, is that he told them that they couldn’t search that box which was in the interior of the trunk. . . . Then the dog came in there and from the outside of the car the dog indicated the presence of drugs. And the fact that you’ve got the dog indicating the presence of drugs and a search which was legal because he consented to it allows you to go further and search the box.

There was evidence to support the trial court’s findings of fact and law. The State Trooper testified that Montero gave him consent to search the “vehicle and its contents” and that when he opened the trunk,

[Trooper:] We came up on an object that was — that he would not allow us to search, and I wanted to go further with the K-9.
[Defense:] If a person gives you permission to search their vehicle, can they rescind that search at any time?
[Trooper:] Yes, sir.
[Defense:] And he did rescind it, didn’t he?
[Trooper:] Yes, sir, on that one item. . . .
[Defense:] But he withdrew the consent, didn’t he?
[Trooper:] He just said he didn’t want us to search that box.

Montero did not testify at the motion hearing. There was no evidence that Montero ever withdrew his consent to search the car. Nor was there evidence that, when Montero told the State Trooper not to search the box, he was withdrawing his consent to search the entire car. Further, the K-9 handler testified that Montero was present when the K-9 began to work the outside of the car, and Montero did not say anything. The K-9 effected an open air search around the entire vehicle. The dog subsequently alerted on the trunk and then on the box in the trunk. The box was then searched, and 21 pounds of marijuana were seized from therein.

The officer had no probable cause to believe that appellant’s vehicle contained contraband before the drug dog alerted. However, the officer’s actions prior to that time were undertaken only with appellant’s consent. Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. A valid consent eliminates the need for either probable cause or a search warrant. When the drug dog did alert to the presence of contraband in the vehicle, the officer then had probable cause to believe that contraband was contained somewhere therein. A sniffing dog may provide probable cause for the issuance of a search warrant, or when exigent circumstances are present, justify a search without a warrant. Once the officer had probable cause to believe that contraband was contained somewhere in appellant’s automobile, he was authorized to conduct a search of its contents, including the . . . box.

The majority reverses based on DiSanti v. State, finding that Montero was illegally detained since “[the trooper] would not let Montero leave because he wanted to search the taped box as well.” The problem with the majority’s position is that, unlike in DiSanti, there is absolutely no evidence in the record that the trooper “would not let Montero leave.” In DiSanti, the officer believed that “appellant had revoked his consent to search, and from that moment on, he considered that appellant was no longer free to go.” DiSanti involved a “renewed detention, unrelated to either the speeding offense investigation or his consent to search.” No such factual circumstances are presented here. In this case, the trooper testified that Montero, himself, was free to leave but the car would be detained as long as the trooper had a valid consent to search it:

[Defense:] If he had decided to leave at that time, would you have arrested him or held him?
[Trooper:] I’d of let him go. The vehicle couldn’t have left.
[Defense:] Okay. Why is that?
[Trooper:] Because we had got permission to search the vehicle. We came upon on an object that was — that he would not allow us to search, and I wanted to go further with the K-9. . . .
[Defense:] But he withdrew consent, didn’t he?
[Trooper:] He just said he didn’t want us to search the box.

The trooper’s motivation for bringing in the drug dog is irrelevant, as long as Montero did not withdraw consent to search the car. Montero never withdrew consent to search the car. The dog was brought in to search the car. And, Montero never indicated that he wanted to leave — so defense counsel’s question regarding “if he had decided to leave” was hypothetical only. Thus, Montero was not detained outside the scope of his consent to search the car, since Montero’s consent to search his car “continued until withdrawn or revoked.”

In this fact-specific case, the trial court found that Montero’s consent to search the car was not revoked or withdrawn at the time he refused to permit a search of the box. The drug dog was called in pursuant to Montero’s continuing consent to search the car. Such findings are supported by the evidence, and in fact, there is no evidence in contradiction. Construing the evidence to support the trial court’s findings and judgment, as we must, the trial court properly denied Montero’s motion to suppress, and the judgment of the court below should be affirmed.

Decided July 14, 2000.

Fleming, Blanchard, Jackson & Durham, James G. Blanchard, Jr., Paul W. David, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Johnson and Presiding Judge Pope join in this dissent.

        DiSanti v. State, 190 Ga. App. 331 (378 SE2d 729) (1989).

        Boggs v. State, 194 Ga. App. 264 (390 SE2d 423) (1990).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       (Citation omitted.) Milan v. State, 228 Ga. App. 310, 311 (491 SE2d 401) (1997).

        State v. Kwiatkowski, 238 Ga. App. 390, 393 (519 SE2d 43) (1999).

        Davidson v. State, 237 Ga. App. 870, 872 (516 SE2d 550) (1999).

        Payne v. State, 244 Ga. App. 734 (536 SE2d 791) (2000).

        Gordon v. State, 242 Ga. App. 50, 51 (528 SE2d 838) (2000); State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974).

        Dawson v. State, 238 Ga. App. 263 (518 SE2d 477) (1999).

        Springsteen v. State, 206 Ga. App. 150, 152 (424 SE2d 832) (1992).

        State v. Long, 232 Ga. App. 445-446 (502 SE2d 298) (1998).

       While not decided here, it appears that law enforcement officers would be unduly burdened if a defendant had the unfettered right to withdraw consent when an officer approaches an illegal substance; withdrawal of consent under such circumstances may raise issues regarding reasonable articulable suspicion to detain for further investigation without consent. Terry v. Ohio, supra.

        Morris v. State, 239 Ga. App. 100, 101 (1) (a) (520 SE2d 485) (1999); Mallarino v. State, 190 Ga. App. 398, 403 (379 SE2d 210) (1989); Bell v. State, 162 Ga. App. 79, 81 (290 SE2d 187) (1982); Ferguson v. Caldwell, 233 Ga. 887, 892 (213 SE2d 855) (1975).

       See, e.g., Schneckloth v. Bustamonte, 412 U. S. 218, 227 (93 SC 2041, 36 LE2d 854) (1973) (“the question whether a consent to a search was in fact ‘voluntary’. . . is a question of fact to be determined from the totality of all the circumstances.”).

       230 Ga. App. 535, 538 (496 SE2d 785) (1998).

       (Emphasis supplied.)

       (Citations and punctuation omitted.) Boggs v. State, supra at 264-265.

       Supra.

       Id. at 333.

       Id. at 334.

        Ohio v. Robinette, 519 U. S. 33, 38 (117 SC 417, 136 LE2d 347) (1996) (“the fact that an officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action. [Cit.]”).

        Boggs v. State, supra at 264-265.

        Gordon v. State, supra at 51.


source: Caselaw Access Project

author: Pope, Presiding Judge. Smith, Presiding Judge,

license: Public Domain

text:
    A00A0722.
    TURPEN et al. v. RABUN COUNTY BOARD OF COMMISSIONERS et al.
    (537 SE2d 435)
   Pope, Presiding Judge.

Citizens of Rabun County sued the county and Rabun County Hospital Authority to enjoin the county’s purchase of a nonprofit hospital’s assets on several grounds, including that the county failed to comply with the Hospital Acquisition Act, OCGA § 31-7-400 et seq. The trial court found the law inapplicable. After the citizens appealed, the sale was finalized. The citizens enumerate only one error, that the court erred in holding that the transaction was not governed by the Act.

Enacted in 1997, the Georgia law prohibits an “acquiring entity” from purchasing or leasing a hospital from a nonprofit corporation and prohibits a nonprofit corporation from selling or leasing a hospital to an acquiring entity, without first providing detailed notice to the Attorney General of the proposed transaction. OCGA §§ 31-7-400; 31-7-401. The Attorney General must publish notice of the proposed transaction and later hold a public hearing “to ensure that the public’s interest is protected ... by requiring full disclosure of the purpose and terms of the transaction and providing an opportunity for local public input.” OCGA §§ 31-7-404 to 31-7-406. By statute, the transaction is not in the public interest,

unless there has been adequate disclosure that appropriate steps have been taken to ensure that the transaction is authorized, to safeguard the value of charitable assets, and to ensure that any proceeds of the transaction are used for appropriate charitable health care purposes.

OCGA § 31-7-406.

The Act also provides that any transaction made in violation of the Act “shall be null and void.” OCGA § 31-7-412 (a). An acquiring entity found violating the Act can be fined $50,000 and have its permit to operate as a hospital revoked. OCGA §§ 31-7-408; 31-7-412 (a).

On April 2, 1999, Rabun County entered into a “Sales Contract” with The Woodlands Foundation, Inc. for the purchase of 7.68 acres of land, buildings and equipment that included two hospitals known as Woodridge Hospital and Ridgecrest Hospital and a business known as Mountain Home Health. Woodlands was a nonprofit corporation that was in financial distress. Rabun County agreed to pay Woodlands $3.7 million for these assets, and the closing was scheduled to occur on September 1, 1999. The contract included certain contingencies including compliance with the Act. Pending the closing, in a separate agreement, Rabun County, through the hospital authority, agreed to lease the facilities from Woodlands and operate them as going concerns.

On May 8, 1999, certain citizens filed suit to stop the purchase and cancel the lease, raising two alleged violations of the state constitution, a claim that the transaction was a waste of county tax dollars and a claim that it violated the Hospital Acquisition Act. The citizens contend that the county paid too much for the assets.

On May 21,1999, Woodlands, Rabun County, and Rabun County Hospital Authority jointly filed notice under the Act and paid the required $50,000 fee. See OCGA § 31-7-402 (a), (c). The applicants identified the Sales Contract and the lease as the applicable contracts. In its cover letter, Woodlands argued to the Attorney General that the law did not apply because the transaction involved two nonprofit entities. The Attorney General disagreed and told Woodlands that the application was incomplete in other respects.

On June 1, after a hearing, the court granted a preliminary injunction based on one of the constitutional arguments, a finding that the Hospital Acquisition Act was applicable to the lease and a determination that its requirements had not been met. The court enjoined the county from operating the facilities “until such time as the proceedings before the Attorney General have been completed.” Rabun County then terminated the lease. The citizens moved for a permanent injunction.

On July 28, Woodlands wrote to the Attorney General arguing that the Act was not applicable to the Sales Contract because the county was the acquiring entity and counties are not subject to the law. The Attorney General again disagreed. Woodlands offered a third argument — that the Act did not apply because the proceeds of the sale were going to bondholders of the bankrupt nonprofit corporation — but the Attorney General disagreed. The county and Woodlands argued for a fourth time that the statute did not apply — this time by offering to turn in Woodlands’ permit to operate Ridgecrest Hospital (Woodridge Hospital had already closed), so that Woodlands would no longer be characterized as a hospital under § 31-7-400 (8) of the Act. The Attorney General accepted this proposal and returned the $50,000 fee. Woodlands tendered Ridgecrest’s permit on August 27 (it had ceased medical activities on August 11).

Rabun County then sought to dissolve the preliminary injunction and obtain validation of the revenue bond necessary to pay for the purchase. After a hearing, the court agreed with the Attorney General, dissolved its preliminary injunction, validated the bond and entered final judgment against the citizens on all counts. The final order was entered on September 13, 1999, and an appeal taken immediately. On November 16, 1999, the sale transaction closed, and the proceeds were disbursed by the trustee in bankruptcy as per the order of the bankruptcy court. The record indicates that as of October 6, both hospitals remain closed and that it would take several months to reopen them because of certification requirements and necessary improvements.

1. Rabun County and the hospital authority have moved to dismiss the appeal on the grounds that the appeal is moot because the transaction has already occurred. The Supreme Court has recently restated the definition of mootness: “a case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights . . . [but] a case which contains an issue that is capable of repetition yet evades review is not moot. . . .” Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998).

The citizens sought an injunction prohibiting the sale and a declaration that the lease and sale by Woodlands to the county and hospital authority be declared void as a matter of law. Although the question of injunctive relief, per se, is moot, the declaratory relief is not. The Act provides that any transaction made in violation of the requirements of the Act “shall be null and void.” OCGA § 31-7-412 (a). Therefore a declaration that the transaction did not conform with the Act is not moot. By operation of law the transaction would be null and void. The county and the authority closed the transaction subject to that risk.

2. We must next address whether the Hospital Acquisition Act applies to counties, i.e., whether counties are “acquiring entities” as defined in the Hospital Acquisition Act.

The Act provides that “acquiring entity” means

an individual, business corporation, general partnership, limited partnership, limited liability company, limited liability partnership, joint venture, nonprofit corporation, hospital authority, or any other for profit or not for profit entity which is a purchaser or lessee of an acquisition.

OCGA § 31-7-400 (1). The citizens argue that the definition is broad enough to include counties, either under the term “hospital authority” or under the final phrase “any other for profit or not for profit entity. . . .” We agree that the catchall phrase is broad enough to include Rabun County in the transaction at issue in this case.

Under Georgia law, a county and a hospital authority are two separate and distinct entities, both of which are authorized to own, operate and lease hospitals. Several statutes show this to be true. Case law shows the same thing. See Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40, 41-42 (1) (440 SE2d 195) (1994); Bradfield v. Hosp. Auth. of Muscogee County, 226 Ga. 575, 583 (1) (176 SE2d 92) (1970). “The legislature is presumed to know the condition of the law and to enact statutes with reference to it.” State v. Tiraboschi, 269 Ga. 812, 814 (504 SE2d 689) (1998). Thus, the legislature did not include counties as acquiring entities under the term “hospital authorities.”

However, Rabun County is included under the broad catchall provision: “any other for profit or not for profit entity which is a purchaser or lessee of an acquisition.” OCGA § 31-7-400 (1). Taken as a whole, we read § 31-7-400 (1) to include any other entity of the same kind or category as those specifically enumerated.

The longstanding rule of construction known as ejusdem generis provides “that a general term following specific terms is confined to the same kind or category of thing. [Cits.]” Witty v. McNeal Agency, 239 Ga. App. 554, 557 (2) (a) (521 SE2d 619) (1999). The entities specifically enumerated in OCGA § 31-7-400 (1) are entities of all forms that operate hospitals regardless of whether they are designed to make a profit. The definition is not limited to private entities only — it includes hospital authorities. The definition is not limited to statutory nonprofit corporations. See OCGA § 14-3-101 et seq. It specifically includes those entities yet also includes all other nonprofit entities. And hospital authorities are nonprofit entities. OCGA §§ 31-7-77; 31-7-84. Finally, “hospitals, whether owned directly by a county or city, or by an authority, are designed and intended to serve identical purposes of discharging the governmental obligation to provide for the health of the people.” (Citations and punctuation omitted.) Bradfield, 226 Ga. at 583 (1). The statute was clearly designed to include any other entity that intends to operate a hospital.

Here, the county has purchased the assets of two hospitals for the specific purpose of using them to operate a hospital. As stated in the county’s brief, “Rabun County proposed to purchase the Woodlands Foundation, Inc. hospital facilities, and to lease those facilities to the Hospital Authority of Rabun County for operation.” Based on this undisputed fact, Rabun County is an “acquiring entity” under the Act.

Construing the Act so that counties that intend to operate hospitals acquired from nonprofit corporations are not included would undermine some of the major policies underlying the Act. “When interpreting a statute we are required to look for the intent of the legislature and construe statutes to effectuate that intent.” (Citation and punctuation omitted.) G.I.R. Systems v. Lance, 219 Ga. App. 829, 832 (3) (466 SE2d 597) (1995). In response to a dramatic increase during the 1990s in the number of conversions of nonprofit hospitals to for-profit entities, many states passed legislation designed to protect the public’s interest in these transactions. “Legislative action was spurred by the secrecy that surrounded conversion activity, the perception that the assets were routinely undervalued and the suggestion that these transactions often involved self-dealing.” Legislation was also prompted by concern about the disposition of the proceeds of any acquisition.

The notice to the Attorney General required under the Georgia Act reveals the concerns of the Georgia legislature. Among other things, the notice must include: the terms and a copy of the proposed agreement and any related agreements including leases, management contracts, and service contracts; the acquisition price; recent valuations of the hospital’s assets; all donative documents reflecting the purposes of prior gifts to the nonprofit of more than $100,000 and the report of an expert addressing the following criteria — whether the disposition is consistent with the directives of the major donors; whether the board of the nonprofit exercised due diligence and appropriate procedures in deciding to dispose of the assets, in selecting the acquiring entity and in negotiating the terms; whether any conflict of interest was disclosed; whether the nonprofit will receive fair value; if the disposition is to another nonprofit, whether the seller will receive an enforceable commitment for fair and reasonable community benefits for its assets; whether the proceeds will be used for charitable health care purposes consistent with the selling nonprofit’s original purpose; whether there are sufficient safeguards to assure the affected community continued access to affordable care and to the range of services historically provided by the nonprofit; and whether the acquiring entity has made an enforceable commitment to provide care to the needy and other criteria. OCGA §§ 31-7-402 (a); 31-7-406. The Act also requires certification that “the transaction will not adversely affect the availability or accessibility of health care services in the county in which the main campus of the hospital is located.” OCGA § 31-7-403 (8). Finally, the Act requires extensive disclosure of the possibility of conflicts of interest. OCGA § 31-7-403.

Thus, among other things, the General Assembly clearly intended to provide: public disclosure of nonprofit hospital dispositions; an assurance that nonprofit corporations are receiving fair value and that the transactions are free from conflicts of interest; oversight by the public and the Attorney General of disposition of the proceeds collected by the nonprofit corporation and assurance of continued access to health care for the community including the needy. Most of these interests would be lost if counties are not included in the definition of “acquiring entity.”

3. On April 2, 1999, when the county and Woodlands entered into the Sales Contract, and on May 21, when they submitted notice under the Act, Ridgecrest Hospital had a hospital permit — and therefore was a hospital as defined in the Act. OCGA § 31-7-400 (8). The county and the hospital authority contend that if a nonprofit gives up its hospital permit while the sale of the hospital assets is pending, the transaction is no longer subject to the Act. We do not agree that such a loophole exists under the Act and find instead that this construction does not reflect the intent of the legislature.

As stated above, the General Assembly clearly intended to provide for oversight of disposition of the proceeds collected by the nonprofit corporation, knowing that these nonprofit corporations would be getting out of the hospital business, i.e., many would be turning in their permits as a matter of course. Therefore, allowing a nonprofit corporation to escape application of the Act by relinquishing its hospital permit after it has entered into an agreement covered by the Act would be inconsistent with the legislative intent.

OCGA § 31-7-400 (8) cannot be construed to mean that a nonprofit corporation with a hospital permit as of the date of an agreement to sell or as of the date of the original notice provided under the Act may simply turn in its permit to avoid application of the Act. For the remainder of the life of the proposed transaction or the public review process provided by the Hospital Acquisition Act, a hospital is a hospital for the purposes of the Act.

4. The citizens also argue, based on Sparks v. Hosp. Auth. of the City of Bremen &c., 241 Ga. App. 485, 488-489 (2) (526 SE2d 593) (1999), that the county and authority violated the Act as of April 2, 1999, the date they entered into the Sales Contract and lease.

But in Sparks, there was only one agreement that provided that Tanner would lease most of the real property of the hospital, purchase most of the personal property and operate the hospital. Even though the agreement provided that it would not be consummated until after the Attorney General approved the transaction, it also stated that it “became a legally binding obligation on the parties effective immediately upon execution and delivery. . . .” Thus, it took effect immediately, regardless of the contingency provision, and therefore violated the intent of the Act to provide notice in advance of consummation of a transaction.

Here there were two separate agreements, a sales contract and a lease. The lease agreement violated the Act as of the day it was signed because it went into effect that day and notice had not been provided under the Act. The trial court so held on June 1,1999. Thus, the lease agreement was null and void under the Act. OCGA § 31-7-412 (a). However, the “Sales Contract” dated April 2,1999, was a typical real estate contract that provided that the sale would close months later, i.e., the sale would be consummated at the time of closing. The notice provided on May 21, 1999, was more than 90 days in advance of September 1, 1999, the proposed closing date, and therefore in accord with the Act.

The critical date from which the 90 days must be calculated is the date any part of the sale or lease effectively transfers ownership, operation or control of the hospital to the acquiring entity. OCGA § 31-7-401. That date is the same as the date of a signed agreement only if the agreement effectively transfers ownership, operation or control of the hospital at that time, as the agreement in Sparks did. Accordingly, “acquiring entities” subject to the Act may give proper notice of a proposed transaction after signing a purchase and sale agreement so long as the agreement is not effective until more than 90 days after the notice and it contains a clause making the closing contingent on the Hospital Acquisition Act review process.

5. In summary, we reverse the trial court’s holding that the Act is not applicable to the transaction. Our decision renders the transaction null and void. OCGA § 31-7-412 (a). From a practical standpoint, it may be impossible to undo the transaction. Because we do not have all the facts related to the consummation of the transaction, we leave that issue to the trial court.

Judgment reversed.

Miller, J., concurs. Smith, P. J., concurs specially.

Smith, Presiding Judge,

concurring specially.

An old and wise saying tells us that hard cases make bad law. This is just such a “hard case,” as was Sparks v. Hosp. Auth. of the City of Bremen &c., 241 Ga. App. 485, 490 (526 SE2d 593) (1999). Although I agree with the result in this case, I cannot agree with the reasoning or all that is said in the majority opinion.

The lease agreement here cannot be distinguished in any meaningful way from that in Sparks. Yet the majority, authored by the author of Sparks, treats them as very different. In Sparks, this court stated that the parties there “agreed to the terms and the conditions of the transaction, but agreed that it would not be effective until the Attorney General approved the agreement.” (Emphasis supplied.) Id. at 486 (1). Now, however, the majority distinguishes this case from Sparks by saying that Sparks “took effect immediately, regardless of the contingency provision,” majority opinion at 197, and that such an agreement “effectively transfers ownership, operation or control of the hospital” at the time it is signed. Majority opinion at 197.

As I indicated in my special concurrence in Sparks, I am concerned about the flaws, both ambiguities and omissions, in the Hospital Acquisition Act, OCGA §§ 31-7-400 through 31-7-412. It is entirely possible, in my view, that it is these flaws that have led to the majority’s strained analysis.

Decided July 14, 2000

Meadows, Ichter & Trigg, Michael J. Bowers, T. Joshua R. Archer, Stockton & Stockton, Lawrence A. Stockton, Jr., for appellants.

Charles L. Clay, for appellees.

       At the time, Rabun County, through the Rabun County Hospital Authority, already operated one hospital — Rabun County Memorial Hospital.

       The filing of a notice of appeal in injunction cases does not serve as a supersedeas. Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125 (223 SE2d 101) (1976). When the injunctive relief sought by appellants cannot be granted, the appeal is moot. Brown v. Spann, 271 Ga. 495, 496 (520 SE2d 909) (1999).

       OCGA § 31-6-47 (a) (9) distinguishes between hospitals owned by political subdivisions of the state and hospital authorities. OCGA § 31-7-51 (a) (8) and (9) define “publicly operated” and “publicly owned” medical facilities as those operated or owned by a “county, municipality, hospital authority, or any combination thereof.” OCGA § 31-7-75.1 establishes irrevocable trust funds for the net proceeds of the sale or lease of a hospital by both hospital authorities and political subdivisions of the state. OCGA § 31-7-85 provides that counties and cities may contract with hospital authorities, and the contracts may provide for the sale or lease of hospitals to authorities. OCGA § 31-7-86 refers to the sale or lease of property by cities or counties to authorities. OCGA § 31-14-14 provides certain immunity for certain officials who are employed in hospitals including, among others, those operated by the state, a political subdivision of the state or a hospital authority. OCGA § 36-60-7 makes plain that counties and municipal corporations may build and equip hospitals directly or indirectly, through a hospital authority.

       Kevin F. Donohue, Crossroads in Hospital Conversions — A Survey of Nonprofit Hospital Conversion Legislation, 8 Ann. Health L. 39, 42 (1999).

       Id., citing Phillip P. Bisesi, Comment, Conversion of Nonprofit Health Care Entities to For-Profit Status, 26 Cap. U. L. Rev. 805, 820 (1997).

       Rachel B. Rubin, Comment, Nonprofit Hospital Conversions in Kansas: The Kansas Attorney General Should Regulate All Nonprofit Hospital Sales, 47 Kan. L. Rev. 521 (1999).

       See OCGA § 31-7-89.1 for application of the Hospital Acquisition Act to sales by a hospital authority.


author: Barnes, Judge.

text:
    A00A0701.
    SUWANNEE SWIFTY STORES, INC. v. NATIONSBANK, N.A.
    (536 SE2d 299)
   Barnes, Judge.

A committee of unsecured creditors sued NationsBank, N.A., in Fulton Superior Court on behalf of Suwannee Swifty Stores, Inc., a convenience store chain that had filed for bankruptcy. The committee alleged that the bank abruptly ended its long-time practice of providing “daylight overdraft protection” in which it covered certain checks for a short time and that this abrupt change led to a cascading series of financial events that caused the company’s demise. The committee’s causes of action included breach of contract, breach of duty of good faith, and duress, among other things.

NationsBank removed the case to bankruptcy court and then moved for summary judgment. The bankruptcy court denied the motion, abstained from hearing the case, and remanded it to Fulton Superior Court for resolution. NationsBank again moved for summary judgment based on the waiver and release in an October 1996 contract, in which Suwannee Swifty released any claims against the bank in exchange for the bank’s agreement to forbear exercising its security rights against certain collateral. NationsBank also moved for summary judgment on a newly raised cause of action alleging that the contract constituted an impermissible preference under the Bankruptcy Code. The superior court granted summary judgment to NationsBank on both motions.

The committee argues on appeal that the trial court erred in granting summary judgment. For the reasons that follow, we affirm.

The October 1996 forbearance agreement acknowledged two promissory notes totaling approximately $6,450,000, on which Suwannee Swifty had defaulted. These notes were secured by certain collateral, and the bank agreed not to exercise its remedies against that collateral until January 28, 1997. In exchange for this forbearance, Suwannee Swifty waived any claims it had against the bank as follows: “Borrower releases and discharges Lender from any and all claims and causes of action, whether known or unknown and whether now existing or hereafter arising, which arise out of events which occurred prior to the date hereof.”

In its order granting summary judgment on this ground, the trial court concluded that “even if factual issues remain about Nationsbank’s alleged culpability in the alleged check kiting scheme” that the committee raised, the release resolved the case in the bank’s favor.

[C]onstruing the evidence in a light favorable to the Plaintiff, Nationsbank offered the Plaintiff an arrangement to save itself. The Plaintiff accepted; and, under the arrangement, the Plaintiff and Nationsbank entered into loan agreements. Subsequently, on October 18, 1996, the Plaintiff and Nationsbank entered into a Forbearance Agreement regarding the outstanding loans, which contained a release of any and all claims against Nationsbank existing at that time. The claims in the Complaint existed at the time the Plaintiff signed the Forbearance Agreement containing the release. The release evidences that the Plaintiff chose to work out its financial problems rather than litigate potential claims against Nationsbank or reserve an opportunity to do so at a later time.

1. On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802-803 (500 SE2d 591) (1998).

2. The committee first argues that the trial court erred by failing to discuss the earlier bankruptcy court order denying summary judgment. In El Chico Restaurants v. Transp. Ins. Co., 235 Ga. App. 427, 428-430 (2) (509 SE2d 681) (1998), we held that a trial court erred in dismissing a complaint based on the plaintiffs’ failure to obtain leave to add parties. A federal district court had previously granted permission to add parties before the case was transferred to state court, and the state court neither reconsidered nor acknowledged the district court’s order.

However, while the bankruptcy court denied summary judgment to NationsBank, within the same order it then abstained from hearing the case and remanded it to the state court for resolution, recognizing that the issues involved matters of state law, not federal law.

We have recognized that “the second judge must conscientiously carry out his judicial function in any case in which he is presiding and he would not fulfill his sworn duty if he found a prior ruling to be erroneous and permitted it to control the case.” Bradley v. Tattnall Bank, 170 Ga. App. 821, 824 (1) (318 SE2d 657) (1984) (physical precedent only). Therefore the trial court did not err in ruling on Nations-Bank’s motion for summary judgment.

3. The committee’s second argument is that the trial court erred in granting summary judgment to the bank because a May 1997 bankruptcy court consent order superseded the October 1996 waiver and forbearance agreement. The May 1997 order, in addition to authorizing Suwannee Swifty’s continued use of cash collateral under certain conditions, gave the committee until August 31, 1997,

within which to investigate, negotiate, and if necessary, initiate and otherwise assert any and all claims as against Nationsbank . . . , by way of equitable subordination, offset defense, or affirmative recovery, or by claim or counterclaim or cause of action in any other jurisdiction or proceeding as may be initiated or prosecuted by the Debtor and/or the Committee, and that claims of the Estate against Nations-bank not filed by the Committee either in this Case or in another jurisdiction on or prior to August 31, 1997, shall be deemed waived. . . .

The committee cites Peppers v. Siefferman, 153 Ga. App. 206 (265 SE2d 26) (1980), to support its argument that the consent order superseded the waiver. However, Peppers addressed whether a debtor’s admission to owing a debt that had been discharged in bankruptcy superseded the discharge. Peppers is inapplicable to this case. The 1997 bankruptcy consent order in this case appears to be a routine agreement to allow Suwannee Swifty to continue its business operations within the constraints of its ongoing bankruptcy action, incorporating as it does three previous such orders. Further, that portion of the order allowing the committee a certain time frame within which to assert claims appears to focus on docket management rather than the merits of the committee’s claims against the bank. We find no merit in the committee’s argument that the consent order superseded the earlier waiver and forbearance agreement.

4. The committee contends that factual issues remain for a jury to decide whether Suwannee Swifty signed the 1996 waiver and forbearance agreement under duress sufficient to invalidate the waiver. See Kelley v. Gen. Motors Acceptance Corp., 145 Ga. App. 739, 740 (2) (B) (244 SE2d 911) (1978). However, aside from stating that “[e]vidence [that NationsBank’s conduct was legally wrong] fills the record” and citing its 16 pages of factual assertions regarding the entire history of the relationship between Suwannee Swifty and NationsBank, nowhere does the committee cite specific factual allegations on record that raise a genuine issue of material fact regarding its claim of duress that would void the 1996 waiver.

On the other hand, NationsBank submitted the affidavit of its vice president, who testified that he was personally involved in the negotiations with Suwannee Swifty’s president over the 1996 waiver and forbearance agreement, which he signed on the bank’s behalf. After detailing the financial details of the agreement, Dewitt testified that the final agreement, which was approved by Suwannee Swifty’s board of directors,

was a product of ongoing negotiations between Nationsbank and Suwannee Swifty, which negotiations occurred on several different occasions. This bargained-for arrangement resulted in Nationsbank releasing collateral it had no obligation to release. At no time did any individual affiliated with Suwannee Swifty contend that Suwannee Swifty was forced by Nationsbank in any way to enter into the Forbearance Agreement.

“It is not duress to threaten to do what one has a legal right to do.” (Punctuation omitted.) Gen. Motors Acceptance Corp. v. Bowen Motors, 167 Ga. App. 463, 467 (1) (C) (306 SE2d 675) (1983). In this case, NationsBank had a legal right to insist on maintaining its liens on collateral securing its loans.

Business compulsion or economic duress involves the taking of undue or unjust advantage of a person’s economic necessity or distress to coerce him into making a contract and is also recognized as a contractual defense. However, a duress claim of this nature must be based upon acts or conducts of the opposite party which are wrongful or unlawful.

(Citations and punctuation omitted.) Id. While the committee contends that NationsBank’s earlier termination of an alleged check-kiting scheme was wrongful, making the loans that were the subject of the 1996 waiver and forbearance agreement also wrongful, the committee failed to present sufficient evidence raising a genuine issue in this regard to withstand summary judgment.

One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.

(Citations and punctuation omitted.) Miller, Stevenson & Steinichen v. Fayette County, 190 Ga. App. 777, 778 (1) (380 SE2d 73) (1989).

Viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the committee, the trial court did not err in granting summary judgment to NationsBank. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

5. Finally, the committee argues that the trial court erred in granting summary judgment to the bank on its newly added claims of improper preference and fraudulent conveyance. NationsBank responds that the committee waived its right to add new causes of action in the bankruptcy court consent order of May 30, 1997, and further argues that the bankruptcy court specifically denied the committee’s motion to add these new claims.

On December 18, 1998, the bankruptcy court ruled that

[a]ny causes of action against Nationsbank . . . which were not asserted in actions filed by or on behalf of the committee . . . on or before September 2, 1997, are deemed waived as provided in this court’s order of May 30, 1997. The committee may amend or apply for permission to amend any complaint filed against Nationsbank on or before September 2, 1997 to the extent that the amendment relates to causes of action originally asserted in any such action, but may not amend to add new causes of action which existed as of May 30, 1997 and which were not asserted by September 2, 1997. A ruling on such amendment and its relation back shall be made by the court in which the case is pending based upon the substantive law and procedural rules applied by that court.

The trial court concluded that the committee had waived any right to add new causes of action in the May 1997 bankruptcy court consent order and that the committee’s preference and fraudulent conveyance claims did not relate back to the initial claims.

OCGA § 9-11-15 (c) provides that “[wjhenever the claim . . . asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth ... in the original pleading, the amendment relates back to the date of the original pleading.” However, this Code section is not instructive here. “ ‘(T)he aim of the relation back rule as to amendment contained in [OCGA § 9-11-15 (c)] is to ameliorate the impact of the statute of limitation.’ Rich’s v. Snyder, 134 Ga. App. 889, 892 (3) (216 SE2d 648) [(1975)].” Maelstrom Properties v. Holden, 158 Ga. App. 345, 346 (280 SE2d 383) (1981).

The issue in this case is not whether the new claims arise out of the transaction raised in the initial pleading, but whether they relate to a cause of action raised in the initial pleading. Claims of preference and fraudulent conveyance do not relate to the committee’s initial causes of action, which included breach of contract, breach of duty of good faith, and duress, among others. We conclude that the trial court did not err in granting summary judgment to Nations-Bank on the committee’s claims added by amendment.

Decided June 27, 2000

Reconsideration denied July 17, 2000

Byrne, Moore & Davis, Francis X. Moore, William L. Rothschild, for appellant.

Troutman Sanders, Kaye W. Burwell, Herbert D. Shellhouse, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J, concur.


author: Smith, Presiding Judge.

text:
    A00A0803.
    BURRUSS v. FERDINAND.
    (536 SE2d 555)
   Smith, Presiding Judge.

Faye Burruss d/b/a Beauty Plus, Inc. filed this appeal from the trial court’s denial of her motions to intervene and to set aside the judgment following an in rem judicial tax foreclosure sale of property in which she claims an interest. This appeal was filed in the Supreme Court, which transferred it to this court after concluding that none of the issues raised in the appeal invoked the jurisdiction of the Supreme Court. Burruss contends the trial court erred in denying both her motions, and she challenges the constitutionality of the statute authorizing judicial in rem tax foreclosures. Because we find that none of Burruss’s contentions have merit, we affirm the judgment below.

1. We note initially that although an appeal from the denial of a motion to intervene usually requires an application for interlocutory appeal, the denial of Burruss’s motion to intervene in this case was a final judgment, and Burruss’s direct appeal was therefore proper. OCGA § 5-6-34 (a) (1). Similarly, Burruss’s other motion was captioned a motion to set aside, which is not directly appealable. OCGA § 5-6-35 (a) (8). But the motion was based upon her contention that she was entitled to notice and was not notified, which is a defect not appearing on the face of the record. The judgment was properly challenged by a motion for new trial, the denial of which is directly appealable. See Hill v. Bailey, 187 Ga. App. 413, 414-415 (1) (370 SE2d 520) (1988). This court has jurisdiction to consider the appeal.

2. On October 15, 1998, Fulton County Tax Commissioner Arthur E. Ferdinand filed a Petition for Judicial In Rem Tax Foreclosure against a piece of property on which $36,076.23 in taxes, interest, and penalties from the years 1991 through 1996 were delinquent. The record owner of the property, McKinley Bell, his guardian, and other interested parties, not including Burruss, were notified that judicial foreclosure proceedings had commenced and of the date of the hearing. A hearing was held on November 19, 1998, and the property ordered sold for taxes.

On January 5, 1999, after advertisement, the property was sold. On March 5, 1999, Burruss filed her motions to intervene and to set aside the foreclosure sale. Ferdinand filed a response in opposition to the motions, and Burruss amended her motion to set aside. Following the hearing on the motions on April 22, 1999, the trial court denied both motions.

Burruss contended below, as she contends in this appeal, that she was entitled to intervene because she was the owner of the property by virtue of a deed under power from Bell’s mortgagee and attorney-in-fact. Ferdinand concedes that if it is demonstrated that Burruss was entitled to intervene, she did not receive proper notice and is therefore entitled to have the foreclosure sale set aside. We agree with the trial court, however, that Burruss was not an interested party under the statute and that she was not entitled to intervene or to have the sale set aside.

Burruss claims she should have been permitted to intervene in the proceeding as a matter of right. OCGA § 9-11-24 (a) provides that

[u]pon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) When the applicant claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

It is clear that Burruss cannot intervene as a matter of right under either subsection of the statute. No statute confers upon her such an unconditional right. Compare Payne v. Dundee Mills, 235 Ga. App. 514 (1) (510 SE2d 67) (1998) (workers’ compensation subrogation statute). And Burruss does not fit within the definition of “interested party” under OCGA § 48-4-77 (1), the ad valorem tax foreclosure statute. Compare Ebon Foundation v. Oatman, 269 Ga. 340, 342-343 (1) (c) (498 SE2d 728) (1998) (intervention permitted because intervenors asserted interests relating to property). OCGA § 48-4-77 (1) defines “[interested part/’ as one having an interest in the property as shown by a title certification conducted in accordance with title standards of the State Bar of Georgia; one entitled to notice of levy under OCGA § 48-3-9 (b) because one’s name is stated on the face of a properly recorded security deed, mortgage, or transfer of the same; or any other party with an interest in the property “whose identity and address are reasonably ascertainable from the records of the petitioner or records maintained in the county courthouse or by the clerk of the court.”

Burruss’s interest in the property derives from a deed under power from William Gordon, who was the holder of the deed to secure debt from Bell, the record owner of the property. It is undisputed, however, that her deed was not in recordable form and was not, in fact, recorded. Her interest was not “reasonably ascertainable” from courthouse or tax records. She was therefore not an “interested part” under OCGA § 48-4-77 (1).

Because Burruss was not entitled to notice, she was not entitled to intervene, particularly after the tax foreclosure sale, when the property had been sold to a third party. The tax commissioner showed that notice had been given to all those entitled to notice, including posting a notice on the property. The court so found in its order entered after the hearing on November 19, 1998.

3. Because Burruss was not entitled to notice and was not an interested party in the proceeding, it follows that she was not entitled to a new trial and had no standing to set aside the tax foreclosure sale.

4. Burruss asserts for the first time on appeal that the trial court erred in not declaring unconstitutional the judicial in rem tax foreclosure statute. As the Supreme Court noted in its order transferring this appeal, this contention was not raised below and cannot be considered here. Rogers v. Barnett, 237 Ga. App. 301, 302-303 (3) (514 SE2d 443) (1999); see Boxer X v. State, 237 Ga. App. 526, 529-530 (5) (515 SE2d 668) (1999).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Decided June 27, 2000

Reconsideration denied July 17, 2000

Giddens, Davidson & Mitchell, Earl A. Davidson, for appellant.

William R. Turner, Rodney T Floyd, for appellee.

       Although this case is physical precedent only, it has since been cited for this proposition with approval. See Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299 (1) (436 SE2d 14) (1993).

       Gordon apparently died prior to the petition being filed.


author: Ellington, Judge.

text:
    A00A0810.
    BURGESS v. COCA-COLA COMPANY.
    (536 SE2d 764)
   Ellington, Judge.

Robert L. Burgess sued The Coca-Cola Company (“Coca-Cola”) for allegedly taking his creative ideas and using them in a commercial that featured anthropomorphic polar bears drinking Coca-Cola. Burgess sought recovery under theories of misappropriation of ideas, breach of express and implied contract, breach of a confidential relationship, unjust enrichment, quantum meruit, and promissory estoppel. After two years of discovery during which over thirty-five people were deposed, Coca-Cola moved for summary judgment. Following a lengthy hearing, the trial court granted Coca-Cola’s motion. For the following reasons, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the record reveals that Burgess approached Coca-Cola in January 1989 to pitch a creative concept he referred to as “The Fantastic World of Coca-Cola.” There is no evidence that Coca-Cola agreed to compensate Burgess for the disclosure of his idea prior to his pitching it for the first time to Coca-Cola executive John B. White. The presentation included seven storyboards which depicted various aspects of the concept. This “Fantastic World,” as Burgess explained, was an imaginary world located inside a Coca-Cola vending machine and populated with a wide variety of Coca-Cola characters, including, as shown by one of the storyboards, a family of white teddy bear-like “cola bears” making ice to cool the Coca-Cola. Burgess also provided White with a written narrative of his concept. This first narrative did not mention bears. White told Burgess he was not in a position to help him. However, believing the concept might be suitable for a toy line, White introduced Burgess to Bruce Gilbert and Mike Ellison with Coca-Cola’s Merchandise Licensing Division.

After hearing the “Fantastic World” pitch, Gilbert told Burgess he was intrigued by the idea of doing a line of Coca-Cola toys. However, Gilbert explained to Burgess that Coca-Cola was not in the business of manufacturing toys; rather, it licensed its trademark to companies for use on merchandise. Therefore, both Gilbert and Ellison told Burgess that before Coca-Cola could proceed any further, Burgess would have to interest a major toy company in his idea. Gilbert and Ellison informed Burgess orally and by letter dated January 12, 1989, that any compensation for the use of his idea would come only from the toy manufacturer. Coca-Cola then introduced Burgess to executives with Kenner Toys in Cincinnati, Ohio.

Burgess pitched his same “Fantastic World” idea to Kenner representatives in February 1989. Initially, they were impressed. The representatives were especially pleased with the cola bears and asked Burgess to develop his ideas further. On March 14, 1989, Kenner made a presentation to Coca-Cola using storyboards developed by Kenner and by Burgess. Coca-Cola liked the presentation, which focused on a line of plush toy teddy bears to be marketed to children between two and ten years of age. On June 14,1989, the toy idea was again pitched to senior Coca-Cola executives who agreed that Kenner could move forward with its development of the toy line. However, because its products had never been marketed to such young children, Coca-Cola asked Kenner in a letter dated August 18, 1989, to obtain a “seal of approval” from a reputable organization as well as a safety endorsement from an independent company before Coca-Cola would agree to licensing its trademark.

While it worked to satisfy Coca-Cola’s conditions, Kenner began negotiations regarding the payment of royalties to Coca-Cola for use of its trademark and to Burgess for his creative efforts. While in the process of finalizing the deal, Kenner began test-marketing the sale of Coca-Cola plush toys, including a teddy bear. The results were surprisingly negative. Consequently, Kenner decided to abandon the project and to release Burgess to pitch his “Fantastic World” idea to other companies. Kenner paid Burgess $25,000 for his efforts on their behalf. There is no evidence that Burgess performed any consulting services for Coca-Cola. Further, Burgess admits that Coca-Cola never reached any agreement with him or with Kenner regarding the payment of royalties.

Burgess presented his “Fantastic World” toy idea to other companies, but they were not interested. From 1989 to 1992, Burgess also continued to contact different Coca-Cola executives, attempting to generate interest in various aspects of his idea, for example, a commercial about an evil character who steals the Coca-Cola recipe. The ideas were all related to the overall “Fantastic World” theme and involved many different characters, including “space aliens” and “cola kids.” The evidence is undisputed that Coca-Cola never implemented, nor contracted with any licensee to implement, Burgess’ “Fantastic World” concept.

In July 1991, Coca-Cola hired Creative Artists Agency (“CAA”) of Hollywood, California, to develop new advertising. CAA was responsible for generating fresh advertising ideas for Coca-Cola’s consideration. Coca-Cola executives did not participate in any aspect of CAA’s creative process; they only reviewed the final submissions. One of the many concepts approved and ultimately made into a commercial was “Bears at the Theater.” This commercial featured a family of anthropomorphic polar bears who were drinking Coca-Cola while they watched the aurora borealis. The commercial was the idea of Ken Stewart, the husband of a CAA executive. The evidence shows that Stewart came up with the idea on his own, free from any input from Coca-Cola personnel. He was unaware of any of Burgess’ ideas. In fact, Stewart was inspired by his Labrador Retriever puppy, who apparently looked like a polar bear. Burgess presented no evidence from which a jury could reasonably infer that Stewart’s idea for the “Bears at the Theater” commercial was created using Burgess’ “Fantastic World” concept or any of its parts, including the cola bears.

The “Bears in the Theater” commercial, first broadcast in 1993, was one of twenty-seven commercial spots aired as part of Coca-Cola’s “Always” campaign. Because “Bears in the Theater” was so well received by the public, Coca-Cola produced several more commercials focusing on the polar bear family. The success of these commercials prompted several companies to contact Coca-Cola for the rights to market plush and plastic Coca-Cola CAA polar bear figurines. Coca-Cola eventually agreed to license the CAA polar bear to several different companies.

Burgess claimed that the CAA polar bear, with its human attributes and family values, was taken from the cola bears he had envisioned in his Fantastic World. Not only did Coca-Cola adduce evidence showing that the CAA polar bear was independently created by Stewart, it introduced evidence showing that the use of a polar bear “spokescharacter” was not novel. First, Coca-Cola demonstrated a long history of various companies using animated anthropomorphic animals as product spokescharacters, including Kellogg’s Tony the Tiger, Star Kist’s Charlie the Tuna, and Nine Lives’ Morris the Cat. Walter Maes, an advertising executive with 27 years of experience, explained that anthropomorphic characters have been used in the industry for decades and that there is nothing novel about such spokescharacters generally. Second, Robert Vianello, a professor of film and television, pointed out that anthropomorphic bears have been put to a number of commercial uses predating Burgess’ disclosure of his idea to Coca-Cola. For example, the Icee Company has had an animated polar bear representing its frozen drink products since the 1960s. Such widespread use of anthropomorphic bears was further evidenced by the book, Teddy Bears in Advertising Art. Third and finally, Coca-Cola has used anthropomorphic bears, including polar bears, in its own advertising on many occasions since 1923. Coca-Cola used an anthropomorphic white bear called “Teddy Snow Crop” to market its Minute Maid frozen orange juice in 1961. It has also licensed the use of its “Enjoy Coke” logo on a variety of plush animals, including bears.

1. (a) To survive summary judgment on a claim for wrongful appropriation of or for conversion of an unpatented or unpatentable idea or product, a plaintiff must adduce some evidence from which a jury may infer the existence of each of these essential elements: “1) the idea must be novel; 2) the disclosure of the idea must be made in confidence; 3) the idea must be adopted and made use of by the defendant; and 4) the idea must be sufficiently concrete in its development to be usable.” (Citation and punctuation omitted.) Jones v. Turner Broadcasting System, 193 Ga. App. 768, 769 (389 SE2d 9) (1989). Burgess argues that the CAA anthropomorphic polar bear featured in Coca-Cola’s “Always” campaign was an unauthorized use of the cola bears element of his “Fantastic World of Coca-Cola” concept. However, even if Coca-Cola had made use of Burgess’ cola bears idea, which the evidence does not support, Burgess’ claim fails because using an anthropomorphic polar bear to sell a soft drink is not a novel idea.

As we have held:

To be novel the concept must be peculiar and not generally available or known to others in the trade. To be protected, an idea must possess genuine novelty and invention, which it cannot have if it merely is an adaptation of existing knowledge, albeit a clever, useful, or sensible adaptation.

(Citations omitted.) Jones v. Turner Broadcasting System, 193 Ga. App. at 769. Coca-Cola demonstrated that anthropomorphic bears, including polar bears, had been used to sell a number of products, including its own, decades before Burgess ever pitched his “Fantastic World” concept. In short, it was simply a variation on an existing theme. That Burgess’ cola bears were presented in a fresh or different setting does not constitute novelty because “creating a new and better way of doing something” already existent is not sufficient. (Citation and punctuation omitted.) Id. ‘Without the element of novelty [Burgess] was deprived of an essential element entitling [him] to recover.” Id. at 769-770.

(b) Further, even if Burgess’ concept was novel, he is not entitled to recover when the unrebutted evidence shows that Stewart and CAA created “Bears at the Theater” on their own initiative, by wholly independent means, and without any input or information from Coca-Cola or Burgess. See AEB & Assoc. Design Group v. Tonka Corp., 853 FSupp. 724, 734 (S.D. N.Y. 1994). Because Coca-Cola is entitled to the complete defense of “independent creation,” the trial court properly granted summary judgment on this claim. See id.

2. Each of Burgess’ remaining claims depends upon his nonnovel idea acting either as consideration for a promise between Coca-Cola and himself or as a benefit conferred upon Coca-Cola. As we have held, however, under these circumstances, nonnovel ideas are insufficient “to serve as consideration for a promise of confidentiality or as a basis for asserting unjust enrichment.” (Punctuation omitted.) Morton B. Katz & Assoc. v. Arnold, 175 Ga. App. 278, 280 (2) (333 SE2d 115) (1985). Burgess’ remaining claims fail as a matter of law because nonnovel ideas do not constitute protected property interests under Georgia law. Id.; Wilson v. Barton & Ludwig, Inc., 163 Ga. App. 721, 723-724 (296 SE2d 74) (1982). Therefore, nonnovel ideas are inadequate as consideration, and “when one submits [such] an idea to another, no promise to pay for its use may be implied, and no asserted agreement enforced.” Downey v. Gen. Foods Corp., 31 NY2d 56, 61 (286 NE2d 257) (1972) (claims for breach of express and implied contract insupportable absent novelty). Similarly, because a nonnovel idea confers no benefit upon the defendant, claims based upon quantum meruit and unjust enrichment for a defendant’s alleged use of the idea must fail. See Morton B. Katz & Assoc. v. Arnold, 175 Ga. App. at 280 (2). And, because nonnovel ideas lack value sufficient to create a property interest, the unauthorized use of another’s nonnovel idea would not result in an injustice, a necessary element in a promissory estoppel claim. Fidelity &c. Co. v. West Point Constr. Co., 178 Ga. App. 578, 579 (1) (344 SE2d 268) (1986) (elements of promissory estoppel). Therefore, Burgess’ claim for promissory estoppel must also fail. See Morton B. Katz & Assoc. v. Arnold, 175 Ga. App. at 280 (2). In fact, under these circumstances, “[l]ack of novelty in an idea is fatal to any cause of action for its unlawful use.” (Citation and punctuation omitted; emphasis supplied.) Downey v. Gen. Foods Corp., 31 NY2d at 61; Murray v. Nat. Broadcasting Co., 844 F2d 988, 993 (2nd Cir. 1988). Consequently, we find no error in the trial court’s grant of summary judgment to Coca-Cola on Burgess’ remaining claims.

Decided June 30, 2000

Reconsideration denied July 17, 2000

Doffermyre, Shields, Canfield, Knowles & Devine, Robert E. Shields, Kenneth S. Canfield, Kilpatrick Stockton, Joseph M. Beck, George W. Austin III, Charles Henn, Jr., Robert Altman, for appellant.

King & Spalding, Louis N. Jameson, Courtland L. Reichman, Joseph B. Haynes, Elizabeth F. Johnson, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       We do not address those circumstances where a nonnovel idea may have substantial value to a particular buyer who is unaware of it and therefore willing to enter into a contract to acquire and exploit it. See Apfel v. Prudential-Bache Securities, 81 NY2d 470 (616 NE2d 1095) (1993). In this case, there is no evidence that Burgess’ idea was disclosed to Coca-Cola pursuant to such an agreement. Further, the evidence in this case reveals that Burgess’ idea was both nonnovel in the abstract and nonnovel to Coca-Cola.

       There is no evidence that a confidential relationship as defined in OCGA § 23-2-58 existed between Coca-Cola and Burgess prior to his disclosing his “Fantastic World” concept. As we have held,
      the mere fact that two persons have transacted business in the past based on oral commitments or understandings and that they have come to repose trust and confidence in each other as the result of such dealings is not sufficient, in and of itself, to warrant a finding that a confidential relationship exists between them within the contemplation of the Code section.

        Kienel v. Lanier, 190 Ga. App. 201, 203 (2) (378 SE2d 359) (1989).


author: Mikell, Judge.

text:
    A00A1135.
    RAPIER v. THE STATE.
    (535 SE2d 860)
   Mikell, Judge.

Robert Carlton Rapier was accused of two counts of violating the Georgia Controlled Substances Act for selling cocaine to an undercover narcotics agent on January 12, 1998, and February 24, 1998. Rapier admitted committing the transactions and asserted the defense of entrapment. The jury acquitted him on the first count and convicted him of the second offense. Rapier was sentenced to five years to serve. The trial court denied Rapier’s motion for new trial. He appeals. We affirm.

1. Rapier contends that the trial court erred in denying his motion for a directed verdict of acquittal based on the state’s failure to rebut his prima facie showing of entrapment. We disagree.

Rapier testified that his next-door neighbor came over one night in October 1997 with gin and beer. The neighbor was accompanied by a confidential informant (“Cl”) who produced a crack pipe and began smoking crack cocaine. Rapier, a recovering crack addict who had avoided the drug since his release from jail, could not resist the Cl’s repeated entreaties to join him. After consuming gin and half a case of beer, Rapier smoked the cocaine the Cl provided. Rapier explained that he did so in part because he had broken his jaw and was in severe pain. Rapier added that his physician would no longer prescribe painkillers for him.

The Cl visited Rapier’s home on numerous occasions between October and December 30, bringing cocaine which the two men smoked. When their supply ran out, Rapier often accompanied the Cl to purchase additional quantities. After about a month, the Cl claimed he could no longer procure the drugs because he owed the dealers money. The Cl told Rapier it was his turn to make the buys, and Rapier felt obligated to do so,

Finally, on December 30, 1997, the Cl arrived at Rapier’s home with Tod Henderson, an undercover agent assigned to the Narcotics Unit of the Cobb County Police Department. The Cl, Rapier, and the agent drove to a dealer’s home, where Rapier purchased cocaine with $60 the agent provided. Rapier claimed the Cl gave him a rock of cocaine in exchange for performing this transaction. The Cl and Rapier had no contact after December 30.

Subsequently, on January 12, 1998, the agent knocked on Rapier’s door at 10:40 p.m. and asked Rapier to purchase cocaine for the agent. Rapier dressed, told the agent where to drive him, and made the buy. Rapier made three additional cocaine purchases for the agent, on January 22, February 12, and February 24. Rapier was arrested after the last sale. Crack cocaine was found in Rapier’s pocket. Rapier claimed the agent gave him a rock of cocaine after each of the four buys they made without the Cl. However, the agent testified he never provided Rapier with cocaine.

Three distinct elements embody the entrapment defense under OCGA § 16-3-25: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime.

The state introduced evidence that Rapier pleaded guilty to possession of cocaine in 1992. It follows that the issue of Rapier’s predisposition to sell cocaine was one for the jury to decide. As to the issue of undue persuasion, Rapier never testified that the agent pressured him into making the purchases. In fact, Rapier admitted that when the Cl “fired one up” the first time they met, Rapier “didn’t throw him out of the house.” Thereafter, Rapier cooperated with purchases in return for a rock of cocaine for each sale. In Hall v. State, we held that a defendant who testified that he sold cocaine to an undercover officer in exchange for drugs showed his predisposition to sell cocaine.

Even assuming that Rapier presented a prima facie case of entrapment, the agent’s testimony that he never provided cocaine to Rapier is sufficient to rebut Rapier’s claim that he was subjected to undue persuasion, incitement or deceit.

Although Rapier contends that without the Cl’s testimony, the state failed to rebut his evidence of entrapment, there is no

per se rule that a defendant is entitled to a directed verdict where the informant is not called to rebut the defendant’s testimony of entrapment. A distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which, under the standards set out in OCGA § 17-9-1, would demand a finding of entrapment and, therefore, a directed verdict of acquittal.

Rapier contends that this case is controlled by Sherman v. United States. However, Sherman’s facts differ significantly from those in the case sub judice. In Sherman, the informant met the defendant at a doctor’s office, where both were receiving treatment for drug addiction. The informant, who was awaiting sentencing for selling narcotics, persistently pleaded with the defendant to obtain drugs for the informant, and the defendant ultimately acquiesced. In contrast, Rapier’s testimony does not demonstrate that the Cl was aware of his status as a recovering addict. Rapier testified only to his belief that his neighbor was aware of Rapier’s addiction based on Rapier’s prior calls to 911 to rid the neighborhood of drug dealers.

Nor do other cases cited by Rapier warrant reversal. In Wagner v. State and Brooks v. State, this Court reversed the defendants’ convictions because the trial court failed to instruct the jury on entrapment. In contrast, in the instant case, the trial court charged the jury extensively on the entrapment defense and permitted Rapier to explore fully the Cl’s relationship with both Rapier and the agent.

Since the evidence in this case did not demand a finding of entrapment, the trial court properly denied Rapier’s motion for a directed verdict of acquittal.

2. Rapier next alleges the trial court erred in refusing to grant his motion, made pursuant to Brady v. Maryland, to reveal the Cl’s identity. We disagree.

In determining whether to compel the state to reveal the Cl’s identity, the trial court first

should hear evidence to determine: (a) that the confidential informant is an alleged informer-witness or informer participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will be in conflict; and (c) that the Cl was the only available witness who could amplify or contradict the testimony of these witnesses.

At this threshold step, Rapier bore the burden of showing the “relevance, materiality, and necessity of the identity of the informant as a predicate for disclosure.” This Rapier failed to do.

At the pretrial hearing on Rapier’s Brady motion, the undercover agent testified that the Cl was not involved in the two transactions for which Rapier was tried. Moreover, Rapier admitted that he had no contact with the Cl after December 30, 1997. It follows that the Cl’s testimony would not be material to the February 24, 1998 sale.

Rapier argues, inter alia, that the Cl’s testimony could amplify or contradict the conflicting testimony regarding whether Rapier expected to be paid with cocaine for making the drug buys for the agent. However, as noted in Division 1, the jury could have construed evidence that Rapier sold cocaine in exchange for drugs as proof of his predisposition to commit the crime.

Accordingly, the trial court did not err in denying Rapier’s motion to reveal the Cl’s identity.

3. Rapier’s third, fourth and fifth enumerations of error take issue with the trial court’s refusal to give three portions of Rapier’s requested charge on entrapment.

First, Rapier alleges the trial court erred in failing to charge the jury that the critical time to determine if the accused was entrapped is the point at which he was first contacted by the government agent. The record shows that during deliberations, the jury asked the court whether entrapment could occur prior to the dates of the alleged offenses. The judge responded affirmatively. Counsel stated that she had no exceptions to the recharge. Having failed to reserve any exceptions, Rapier waived the right to object to the recharge on appeal.

Second, Rapier asked the trial court to charge:

If you find that the government. . . agent generates criminal acts by “creative activity” that are not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement, those acts cannot be used to show predisposition.

Finally, Rapier requested the trial court to charge that “the government may not make use of an informer and then claim dissociation through ignorance.”

As the trial judge concluded, these two requested paragraphs were more properly suited for defense counsel’s closing argument than for jury instruction. In any event, the trial court gave the charge on entrapment contained in Volume II of the Suggested Pattern Jury Instructions promulgated by the Council of Superior Court Judges. This charge as a whole fully and accurately informed the jury of the elements of the entrapment defense. Accordingly, we find no error in the trial court’s refusal to give the specific requested charges.

4. Finally, Rapier challenges the sufficiency of the evidence to support his conviction.

On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find Rapier guilty beyond a reasonable doubt of the offense for which he was convicted.

Decided June 30, 2000

Reconsideration denied July 17, 2000

Amelia G. Pray, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Irvan A. Pearlberg, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       (Punctuation omitted.) Brooks v. State, 224 Ga. App. 829, 830 (1) (482 SE2d 725) (1997).

        Wright v. State, 232 Ga. App. 104, 105 (1) (501 SE2d 543) (1998).

       211 Ga. App. 310, 311 (439 SE2d 67) (1993).

        Wright v. State, supra, 232 Ga. App. at 105 (1); Rutledge v. State, 218 Ga. App. 130, 133 (2) (460 SE2d 551) (1995).

       (Punctuation omitted.) State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981); Timberlake v. State, 200 Ga. App. 64, 68 (406 SE2d 537) (1991); Finley v. State, 214 Ga. App. 452, 453-454 (448 SE2d 78) (1994).

       356 U. S. 369 (78 SC 819, 2 LE2d 848) (1958).

       220 Ga. App. 71 (467 SE2d 385) (1996).

       Supra, 224 Ga. App. at 831 (1).

       373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       (Punctuation omitted.) Ivory v. State, 234 Ga. App. 858, 860 (2) (508 SE2d 421) (1998).

        Leonard v. State, 228 Ga. App. 792, 794 (2) (492 SE2d 747) (1997).

        Grant v. State, 230 Ga. App. 330, 332 (1) (496 SE2d 325) (1998).

        Wagner v. State, supra, 220 Ga. App. at 73.

        Parkman v. State, 241 Ga. App. 756, 757 (1) (526 SE2d 640) (1999).

        Wagner v. State, supra, 220 Ga. App. at 73.

        Sherman v. United States, supra, 356 U. S. at 375.

       See Haralson v. State, 223 Ga. App. 787, 792 (4) (479 SE2d 115) (1996) (when read as a whole, jury charge on entrapment held proper).

        Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).