author: Blackburn, Judge.

text:
    A92A1716.
    TAYLOR v. DEPARTMENT OF TRANSPORTATION.
    (445 SE2d 578)
    Decided May 13, 1994.

      Ellenberg & Associates, Richard D. Ellenberg, for appellant.

      Michael J. Bowers, Attorney General, Dwyer & White, J. Matthew Dwyer, Jr., Anne W. Sapp, for appellee.
   Blackburn, Judge.

In Division 1 of Taylor v. Dept. of Transp., 207 Ga. App. 707 (429 SE2d 108) (1993), we reversed the trial court’s granting of the DOT’s motion in limine excluding evidence of circuity of travel and inconvenience caused by the taking of certain property owned by Taylor. In Dept. of Transp. v. Taylor, 264 Ga. 18 (440 SE2d 652) (1994), the Supreme Court reversed, finding that the evidence was not relevant to Taylor’s recoverable damages and that the trial court properly granted the motion in limine. Accordingly, Division 1 of this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court, and the trial court’s granting of the motion in limine is affirmed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Cooper, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A94A0953.
    LANGFORD v. THE STATE.
    (444 SE2d 153)
   Blackburn, Judge.

James Richard Langford was convicted by a jury of theft by receiving stolen property, possession of motor vehicles with altered identification numbers, and owning and operating a chop shop. On appeal, Langford enumerates as error the trial court’s denial of his motion to suppress the evidence and its denial of his motion for mistrial based on the State’s improper attempt to impeach his character.

1. Langford contends that his conviction should be reversed because the search of his property was based on a warrant which was not supported by probable cause. Langford argues that the affidavit, upon which the search warrant was based, failed to set forth the reliability of the confidential informant or the reliability of the information contained therein.

The affidavit, prepared by an investigator with the Jackson County Sheriffs Department, contained the following information relevant to our inquiry: “Within the past 48 hours a law enforcement officer received information from a confidential informant that Mr. Ricky Langford has been dealing in stolen vehicles and or stolen vehicle parts. The confidéntial informant has personal knowledge that the said vehicles are stolen and are on the property. It wishes to remain anonymous for fear of its personal safety. My investigation found the shop to be where it said it would be. I drove to the property and spoke to Mr. Ricky Langford and asked for permission to search his property and to check the VIN’s of the vehicles present. Mr. Langford gave permission to myself and Inv. Venable and led us up the driveway to the mobile home and shop. He then showed us around, and when we started to check two vehicles that the confidential informant had described, he told us that we would have to stop our search and leave the property and obtain a search warrant and he would contact his lawyer. We left and Mr. Langford left the property immediately.” It is undisputed that the magistrate did not receive any additional evidence prior to issuing the search warrant.

“Under the standard set forth by the United States Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the ‘totality of the circumstances,’ including the ‘veracity’ and ‘basis of knowledge’ of the informant, there is a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place. While establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” (Citations and punctuation omitted.) State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993).

Decided May 13, 1994.

Whitmer & Law, James H. Whitmer, for appellant.

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellee.

In the case sub judice, the magistrate was not provided with any information regarding the informant’s veracity or basis of knowledge; in fact, affiant testified at the motion to suppress hearing that he had no knowledge of the informant. As the magistrate was provided with no information from which he could independently determine the reliability of the informant or the basis of the informant’s knowledge, the information contained in the affidavit was nothing more than rumor. See id.

“Of course, even if an officer cannot provide information regarding the veracity óf an informant or the basis of his knowledge, a tip may be proved reliable enough to provide probable cause if portions of the tip are sufficiently corroborated. See Gates, supra. In order for the corroboration to be meaningful enough to show reliability, however, the information corroborated must include a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. In short, the information corroborated will generally need to be a prediction of future behavior, as in Gates, or something similar — that is, inside information not available to the general public.” (Citations and punctuation omitted.) Bryant, supra at 321.

In the present case, the investigator corroborated where the suspect lived, where the shop was located, and confirmed the existence of two vehicles on the premises. This information would be available to the general public, in that Langford operated a junk yard in which any customer would be able to describe certain vehicles on the property. Furthermore, Langford’s withdrawal of his consent to search, while suspicious, could also be explained by any number of innocuous reasons. Therefore, we find that the trial court erred in denying Lang-ford’s motion to suppress the evidence.

2. Our holding in Division 1 renders consideration of the remaining issue moot.

Judgment reversed.

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


text:
    A94A1104.
    SPEARS v. THE STATE.
    (444 SE2d 152)
   Blackburn, Judge.

Jermarco Spears appeals his conviction by a jury of three counts of trafficking in cocaine. Spears contends that the trial court erred in failing to grant his motion for mistrial.

During the cross-examination of the police informant, by Spears’ counsel, the witness loudly questioned Spears’ counsel. The transcript contains the following exchange: Witness: “Are you the attorney that put a hit on me?” Spears’ attorney responded: “Sir?” Witness: “Are you the attorney that went down to Club Nikki’s?” Spears’ attorney then asked the court for a motion outside the presence of the jury. However, before the jury left, the witness asked, “Did you have a hit man looking for me?” Thereafter, the jury left and Spears’ counsel argued for a mistrial. The trial court denied the motion and gave the jury the following curative instruction: “Ladies and Gentlemen, before we recessed briefly, there was a couple of questions propounded by the witness to counsel for the accused. Of course, it’s inappropriate for a witness to ask an attorney questions. And the nature of the questions are such that I wanted to ask you, first, are any of you by virtue of having heard the questions — are there any of you that would be in any way prejudice or bias [sic] against the Defendant in this case? I’m going to ask you to put those questions out of your mind and give no consideration whatsoever to the questions that were propounded by the witness to counsel. Are there any of you that cannot follow that instruction and put those questions out of your mind and give them no weight of consideration? . . . Let the record reflect that we have no response from the jury.”

Spears contends that the witness’ questions put his character in issue and that its admission was so prejudicial as to require the grant of a mistrial. We do not agree. Assuming arguendo that the witness’ questions to Spears’ counsel regarding the attorney’s conduct placed Spears’ character in issue, we do not agree that the questions were so prejudicial that the trial court’s curative instructions were ineffective. See Rivais v. State, 192 Ga. App. 226 (1) (384 SE2d 200) (1989). “Motions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned. [Cits.]” Holcomb v. State, 130 Ga. App. 154, 155 (202 SE2d 529) (1973).

In the present case, the witness’ questions were voluntarily made and were unresponsive to Spears’ counsel’s line of questioning; the questions were directed toward the attorney’s actions, not toward Spears’ conduct or character; and the trial court properly instructed the jury that the questions were improper and should be disregarded. On these facts, we find that the trial court did not abuse its discretion in denying Spears’ motion for mistrial.

Decided May 13, 1994.

Sharon L. Hopkins, for appellant.

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

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A94A0029, A94A0030.
    PHILIPS MEDICAL SYSTEMS NORTH AMERICA COMPANY v. DIAGNOSTIC EQUIPMENT SERVICES, INC.; and vice versa.
    (444 SE2d 345)
   Birdsong, Presiding Judge.

Philips Medical Systems (“Philips”) appeals from a judgment, based upon a jury verdict, in favor of Diagnostic Equipment Services (“DES”) on a claim based upon OCGA § 11-2-722 arising from the delay in delivery of a CT-Scanner machine. The record shows that the claim arises from a series of contracts to buy and sell the machine which at the time of the original contract was located at the University of South Carolina Hospital. With the understanding that Access Medical Equipment Group would subsequently obtain the CT-Scanner, DES contracted to buy the machine from Access. Two days later Philips agreed to sell to Access the CT-Scanner, which Philips would obtain from the University of South Carolina Hospital. All the contracts provided that the CT-Scanner removal date, i.e., “the deinstallation date,” would be January 30, 1991.

Apparently because of the reluctance of the University Hospital to release the machine, the machine was not deinstalled as anticipated and there was a delay in the delivery of the machine. As a result, DES sued Philips to recover for damages resulting from the delay under OCGA § 11-2-722 (“Who can sue third parties for injury to goods”): “Where a third party so deals with goods which have been identified to a contract for sale as to cause actionable injury to a party to that contract: (a) A right of action against the third party is in either party to the contract for sale who has title to or a security interest or a special property or an insurable interest in the goods. . . . (b) If at the time of the injury the party plaintiff did not bear the risk of loss as against the other party to the contract for sale and there is no arrangement between them for disposition of the recovery, his suit or settlement is, subject to his own interest, as a fiduciary for the other party to the contract.”

Philips alleges on appeal that the trial court erred by denying its motions for summary judgment and for a directed verdict because there is no claim under OCGA § 11-2-722 because there was no actionable injury, by denying its motion for a directed verdict on damages because DES could suffer no loss, by charging on negligence without fully charging on OCGA § 51-1-11 (a), by denying its motion for a directed verdict on litigation expenses under OCGA § 13-6-11 since the evidence showed that a bona fide dispute existed, and by failing to charge that expenses of litigation are not authorized if the jury found that a bona fide controversy existed.

In the cross-appeal DES contends the trial court erred by dismissing its claims for fraud based upon Philips’ representations that the CT-Scanner would be delivered as promised. Held:

Case No. A94A0029

1. (a) Regarding Philips’ claim that the trial court erred by denying its motion for a directed verdict on DES’s claim under OCGA § 11-2-722, this court must review and resolve the evidence and any doubt or ambiguity in favor of the verdict; a directed verdict is not authorized unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268).

In this instance, however, we find that Philips was entitled to a directed verdict on this claim because OCGA § 11-2-722 does not create a cause of action for a claim against Philips. OCGA § 11-2-722 merely determines which party to a contract may bring an action against a third party who lias otherwise committed an actionable injury against identifiable property that is the subject of the contract. Statutes are to be construed in accordance with their real intent and meaning (Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97)), and a statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5). Therefore, it is clear that OCGA § 11-2-722 creates no cause of action in tort for what would otherwise be at best a breach of contract claim. Thus, since DES otherwise had no independent cause of action against Philips, it could not bring an action based on OCGA § 11-2-722. Under these circumstances, the trial court erred by denying Philips’ motion for a directed verdict.

(b) The denial of the motion for summary judgment is moot.

Decided April 25, 1994

Reconsideration denied May 16, 1994.

Finestone, Morris & Wildstein, Robert D. Wildstein, Troy S. Kozak, for appellant.

Wood & Perry, Jere F. Wood, for appellee.

2. In view of our disposition of this enumeration of error, Philips’ other enumerations of error asserting the denial of a directed verdict on damages and various charging errors are moot. Moreover, DES was not entitled to recover on its claims against Philips; hence, it could not recover on its claims under OCGA § 13-6-11.

Accordingly, the judgment of the trial court is reversed and the trial court directed to enter judgment awarding a directed verdict for Philips.

Case No. A94A0030

3. In its cross-appeal DES alleges that the trial court erred by granting Philips’ motion for partial summary judgment on DES’s claims for negligent misrepresentation and fraud. It is apparent from the evidence presented that DES had no contract with Philips and was thus not within the scope of those who might assert a claim for negligent misrepresentation. See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 682 (300 SE2d 503). Further, since the evidence shows that DES had contracted to purchase the CT-Scanner before the time that Philips had a contract to sell the machine, DES cannot claim that it relied upon Philips’ representations.

As to the claim of fraud, in this case a claim for actionable fraud cannot be based upon Philips’ representation that the CT-Scanner would be available on a future date. Jackson v. Brown, 209 Ga. 78, 80 (70 SE2d 756); Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590 (309 SE2d 813). Further, there is no evidence that at the time Philips promised the CT-Scanner would be available, Philips then knew the CT-Scanner would not be available as promised. See Hayes v. Hallmark Apts., 232 Ga. 307, 308 (207 SE2d 197). Thus, in this case the evidence does not demand a finding that the promise was made as to a future event without a present intent to perform the promise. Community Fed. Savings &c. Assn. v. Foster Developers, 179 Ga. App. 861, 864 (348 SE2d 326). Accordingly, the judgment in Case No. A94A0030 is affirmed.

Judgment affirmed in Case No. A94A0030 and reversed with di-' rection in Case No. A94A0029.

Cooper and Blackburn, JJ., concur.


text:
    A94A0804.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. PURVIS et al.
    (444 SE2d 109)
   Birdsong, Presiding Judge.

We granted this interloctory appeal of the denial of summary judgment to Georgia Farm Bureau Insurance Company in its suit for declaratory judgment regarding a homeowner’s insurance policy issued to defendant Frederick Purvis. Purvis, his son and others were sued for damages by Nelson N. Wilson, whose house was destroyed by a fire set by Purvis’ son Kevin and two other boys while they were vandalizing the house. Held:

There is no material dispute that Kevin Purvis and others entered Wilson’s house and vandalized it, swinging sticks at lights, breaking windows and causing other damage. They found a box of matchbooks and began “flipping” burning matchbooks at each other. One matchbook landed on a sofa and ultimately caused the house to be destroyed by fire.

Farm Bureau says Purvis’ homeowner’s policy excludes coverage for damage “which is expected or intended by the insured.” (Emphasis supplied.) Purvis contends Kevin did not expect or intend to burn the house down, and that although some damage was “intentionally” caused, e.g., the breaking of windows and light bulbs, none of those actions caused the fire.

This type of exclusion was considered in Thrift-Mart v. Commercial Union Assurance Cos., 154 Ga. App. 344 (268 SE2d 397). In that case, we said the evidence supported the jury’s finding that the vandal intended or expected damage to occur to items he swept off the store shelf; even if he did not intend or expect to burn the property, the policy exclusion does not restrict the injury or damage to fire. “ ‘ “Accident” and “intention” are converse terms. An accident refers to an unexpected happening rather than one occurring through intention or design.’. . . [Cit.] Thus, [the vandal’s] acts could not be unexpected unless they were accidental, and there was no evidence that such was the case. Hence, if the jury found that [the vandal] intended to cause harm to the property of another, the resulting damage was both intentional and expected, as contemplated by the exclusion of coverage.” Id. at 346. This language authorizes summary judgment to the insurer, for there is no issue of material fact remaining that Purvis expected or “intended to cause harm” and “there was no evidence that [his acts were accidental].” (Emphasis supplied.) Id.

The general rule is that such exclusions are applicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. “ ‘Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that . . . injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected. (Cit.)’ . . . [Cit.]” Stein v. Massachusetts Bay Ins. Co., 172 Ga. App. 811, 813 (324 SE2d 510).

Decided April 19, 1994

Reconsideration denied May 16, 1994.

Andrew, Threlkeld & Thompson, Richard S. Thompson, for appellant.

Robert S. Reeves, Wilmer L. Salter, Jr., Shepherd, Gary & Mc-Whorter, Millard B. Shepherd, Jr., for appellees.

The facts in this case are even more fitted to the exclusion than those in Thrift-Mart, where it was not clear how the fire started. Here it is undisputed that the fire started because the vandals deliberately flipped lit matches at each other. It must be concluded beyond any genuine issue of material fact that they intended damage to the house; the fact that the damage was more severe than they intended “does not vitiate the element of intent.” Stein, supra at 813. There is nothing for a jury to decide because the evidence is undisputed that Kevin “expected” and “intended” to damage the property. Moreover, the nature of fire is such that it can be “expected” to get out of hand, and if a person “intentionally” lights a matchbook of matches and flips it onto a sofa, damage or destruction of the premises by fire may be reasonably “expected.”

Judging the evidence most favorably to the respondents (Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), Farm Bureau is entitled to summary judgment.

Judgment reversed.

Cooper and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A94A0145.
    FREEMAN v. MOBLEY et al.
    (444 SE2d 155)
   Cooper, Judge.

Plaintiff, Sammy Freeman, and defendants, Justin Mobley and Mildred Knox, are beneficiaries under a will executed in October 1991 by the deceased. Plaintiff is also named as a beneficiary of a codicil executed in November 1992 by the deceased. Defendant Mobley filed a petition to probate the will of the deceased in common form and alleged in the petition that the codicil was not properly executed. Plaintiff filed a petition to compel probate of the will in solemn form, although that petition is not included in the record. Following a hearing on May 19, 1993, in the Probate Court of Richmond County, the judge probated the will in common form and denied probate of the codicil. On May 21, 1993, plaintiff filed a document captioned “Petition for Appeal to Superior Court to Set Aside Probate of Will in Common Form and for Injunctive Relief.” Defendants answered and moved to dismiss the petition on the grounds that it failed to state a claim upon which relief could be granted. After hearing evidence, the trial judge granted defendants’ motion to dismiss. Plaintiff appeals that order.

Decided May 16, 1994.

Brown, Hart & Grünewald, Kathy R. Grünewald, Carl C. Brown, Jr., for appellant.

Walter P. Degenhardt, Bondurant, Mixson & Elmore, George W. Fryhofer III, for appellees.

There can be no appeal from the probate of a will in common form. Henslee v. Stamps, 137 Ga. 114 (72 SE 898) (1911). Plaintiff contends the trial court erroneously construed his petition as an attempt to appeal the judgment probating the will in common form. Plaintiff argues that his petition was for a de novo investigation of the decision of the probate court that refused to consider his petition to require that the will be probated in solemn form.

The record reflects that at the hearing in the probate court on defendants’ petition to probate the will in common form, the judge acknowledged that plaintiff had filed a petition to require that the will be probated in solemn form. The judge stated that a probate in solemn form could not occur until all of the heirs had been determined. Counsel for defendant Mobley stated that he would file a petition to have the will probated in solemn form. After hearing evidence, the probate judge directed that the will be probated in common form and noted that after the heirs were determined, defendants could proceed with probate in solemn form. The record further reflects that plaintiff acquiesced to this procedure, but two days later filed a petition in superior court requesting that the order admitting the will to probate in common form be set aside. Contrary to plaintiff’s argument, the record does not support his assertion that the probate court denied his motion to require that the will be probated in solemn form. Consequently, the order probating the will in common form being unappealable, Henslee, supra at 114, the trial court properly dismissed plaintiff’s petition to set aside the probate in common form. Abercrombie v. Hair, 185 Ga. 728 (6) (196 SE 447) (1938).

Judgment affirmed.

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


text:
    A94A1031.
    VICK v. THE STATE.
    (445 SE2d 579)
    Decided May 16, 1994.

      William L. Reilly, for appellant.

      Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.
   Blackburn, Judge.

J. R. Vick appeals his conviction by a jury of attempting to elude a police officer. Vick contends that the trial court erred in denying his motion for new trial.

After Vick’s trial, his counsel orally moved for a new trial based upon the State’s failure to prove the police officer’s vehicle was a vehicle properly marked as a police officer’s vehicle. See OCGA § 40-6-395 (a). The trial court denied Vick’s motion. On appeal, Vick contends that “the trial court erred in denying [his] motion for new trial which raised the issue of the sufficiency of the evidence in connection with the offense of fleeing or attempting to elude a police officer.” Vick argues that the State failed to establish that the officer activated both his audible and visual signals while in pursuit.

Vick’s argument on appeal was not raised in the trial court and, therefore, we are without authority to review it. Adams v. State, 203 Ga. App. 794, 797 (418 SE2d 68) (1992). However, we reviewed the evidence in the light most favorable to the verdict and we conclude that a rational trier of fact could have found Vick guilty beyond a reasonable doubt of attempting to elude a police officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A94A1588.
    HALL v. THE STATE.
    (445 SE2d 578)
   Birdsong, Presiding Judge.

Bryant Jamal Hall a/k/a Mel Hall appeals his conviction for sale of cocaine. He contends the trial court erred by denying his general demurrer and motion to quash the indictment. Held:

Pretermitting any issue of the validity of Hall’s general demurrer and motion to quash the indictment (OCGA § 17-7-111; State v. Givens, 211 Ga. App. 71, 72 (438 SE2d 387)), his appeal must be dismissed because he voluntarily abandoned his motion for new trial. When there is no order disposing of the motion for new trial nor an order granting an extension of time or a delayed appeal, there is no extension of time beyond the 30 days permitted after entry of the judgment. Marshall v. State, 205 Ga. App. 531 (422 SE2d 677); Taylor v. State, 173 Ga. App. 745 (327 SE2d 860). Compare Ailion v. Wade, 190 Ga. App. 151 (378 SE2d 507). Accordingly, Hall’s notice of appeal was untimely, and his appeal must be dismissed.

Decided May 16, 1994.

Meadows & Associates, Warren R. Power, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

Appeal dismissed.

Cooper and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A2079.
    HARDY v. ARCEMONT.
    (444 SE2d 327)
   Beasley, Presiding Judge.

Cameron Arcemont, a Mississippi resident, filed the present petition in Muscogee County to legitimate Nicholas Hardy. We must construe “the county of the residence of the child,” which is locus, as it appears in OCGA § 19-7-22. This will determine whether the court had jurisdiction, which is the primary issue in this appeal.

Under OCGA § 9-11-12 (d), jurisdictional questions involving factual issues may be tried by the court before trial. Watts v. Kegler, 133 Ga. App. 231, 233 (3) (211 SE2d 177) (1974). On appeal, the court’s finding on a factual issue will be sustained if there is evidence which authorized the finding. Id. We view the evidence in this light.

The child’s mother, Cathy Hardy, married Dr. Michael Hardy in 1982, but they were divorced by a final judgment of divorce entered by a Mississippi court on April 1,1988. Nicholas was born on September 10,1988, approximately five months later. Hardy was listed as the father on the child’s birth certificate.

Hardy testified that although he continued to have sexual relations with Cathy until he filed for divorce on January 22, 1988, he previously had an operation that more than likely rendered him sterile. After the operation, he was tested for sterility and found to have one sperm but it was not motile.

At Hardy’s request, the complaint for divorce and the decree incorporated a separation agreement which stated that “no children have been born to the parties, nor are any expected of their marriage union.” Hardy testified that he knew at least in February 1988 that Cathy was pregnant, and that she had told him that she had sexual relations with Arcemont and that there was a very good chance that Arcemont was the father. Both Arcemont and the child have blond hair, whereas Dr. and Mrs. Hardy both have dark hair. A photograph of the child and Arcemont shows a strong resemblance.

Arcemont testified that he met Cathy in Mississippi in December 1987 and had sexual relations with her on one occasion that month. In March 1988, she called and told him she was pregnant and he was the father. He first saw Nicholas the day before Father’s Day 1989 and started paying child support that month. He, Cathy, and the child took an HLA blood test in August 1989. It showed a 99.48 percent likelihood that Arcemont is the father. Arcemont established a parental relationship with the child, who referred to Arcemont as his father, and he saw the child frequently for a period of one-and-one-half to two years.

Hardy also paid child support, saw the child, established a parental relationship with him, and the child also referred to him as his father.

Cathy moved with the child to Columbus, Georgia, in February 1991. Afterward, she became ill with cancer and curtailed Arcemont’s visits with the child. He told her he wanted custody of Nicholas if she could not take care of him. On February 19, 1993, she wrote him a letter stating that she was returning child support checks from him and his mother, and that out of love and concern for Nicholas’ future she had made a decision for Nicholas to live with her brother and his wife in the event she no longer was able to take care of him. As a result, Arcemont obtained a lawyer and wrote Cathy a letter stating that he intended to seek custody of Nicholas if something happened to her. He attached an affidavit for her to execute acknowledging him as the father.

On February 22, while on her death bed, Cathy executed an affidavit stating, inter alia, that Hardy is the child’s father and that she wanted her son to be in the custody and “possession” of Hardy at her death. On February 25, she gave the child to her mother’s boyfriend, who delivered the child to Hardy’s present wife in Selma, Alabama. She transported him to Mississippi. Cathy died in Columbus on March 1.

Unaware of these events, on March 2 Arcemont filed the present petition in Columbus to legitimate the child. After being informed that Cathy had died, Arcemont amended his petition to allege that at the time it was filed the child was residing in Georgia and that the superior court in Muscogee County has jurisdiction because that was the county of the child’s residence. Hardy learned of Arcemont’s petition, applied to intervene for the purpose of objecting to jurisdiction, and responded. He asserted that the child is the legitimate child of Hardy and that Arcemont, Hardy, and the child are Mississippi residents.

At a hearing, the court granted Hardy’s application and heard evidence on the question of its jurisdiction. Finding that Arcemont had rebutted the presumption that the child is legitimate and had proven by overwhelming evidence that he is the father, the court concluded that upon Cathy’s death, Hardy did not become entitled to custody and that the child remained a resident of Muscogee County notwithstanding the fact that he had been transported to Mississippi. Accordingly, the court overruled Hardy’s objection to jurisdiction. The court also held that since the presumption of paternity has been rebutted, Hardy lacked standing to object. We granted his application for interlocutory appeal. OCGA § 5-6-34 (b).

1. Under Georgia law, all children born in wedlock or within the usual period of gestation thereafter are legitimate, but the legitimacy of such a child may be disputed; where possibility of access exists, the strong presumption is in favor of legitimacy and the proof must be clear to establish the contrary. OCGA § 19-7-20 (a), (b). Issue of adulterous intercourse is born out of wedlock. OCGA § 19-7-23.

A father of a child born out of wedlock may legitimate the child by petitioning the superior court of the county of his or the child’s residence. OCGA § 19-7-22. By legitimating the child, the biological father becomes recognized in law as the father and obtains custody rights. OCGA § 19-7-25; Pruitt v. Lindsey, 261 Ga. 540, 542 (407 SE2d 750) (1991). The domicile of a child born out of wedlock is that of the child’s mother; otherwise, the domicile of a child is that of his or her parents; if the parents are divorced, the child’s domicile is that of the custodial parent. OCGA § 19-2-4 (a).

Where the parents of a child are divorced, upon the death of the custodial parent legal custody automatically reverts to the other parent and the child’s domicile becomes that of the other parent, unless such parent has voluntarily relinquished parental control to another. Abrams v. Daffron, 155 Ga. App. 182 (270 SE2d 278) (1980) and cit.; OCGA § 19-9-2.

Based on Meredith v. Meredith, 257 Ga. 458 (360 SE2d 586) (1987), Hardy argues that since he was the child’s “legal” father at the time of the mother’s death, custody automatically reverted to him in Mississippi, the child has become a Mississippi resident, and the Georgia court lacks jurisdiction of this dispute wherein all the parties are Mississippi residents.

Under Macuch v. Pettey, 170 Ga. App. 467 (317 SE2d 262) (1984) and Fleeman v. Dept. of Human Resources, 208 Ga. App. 97 (430 SE2d 135) (1993), rev’d on other grounds, Dept. of Human Resources v. Fleeman, 263 Ga. 756 (439 SE2d 474) (1994), Hardy is collaterally estopped from claiming paternity because of the disclaimer of paternity in the parties’ divorce decree and supporting evidence. As to collateral estoppel generally, see Green v. Thompson, 208 Ga. App. 609 (431 SE2d 390) (1993).

Consequently, Hardy did not become entitled to custody upon the mother’s death under OCGA § 19-9-2. Nor could the mother unilaterally substitute Hardy as the child’s legal custodian for herself without the consent of the other parent. Williams v. Perry, 187 Ga. App. 586, 589 (1) (370 SE2d 836) (1988). Therefore, the child remains a domiciliary and legal resident of Georgia, for the purposes of the legitimation proceeding under OCGA § 19-7-22. This distinguishes Meredith.

Decided April 1, 1994

Reconsideration denied May 17, 1994

Hirsch, Partin & Grogan, John P. Partin, for appellant.

Warren S. Shulman, for appellee.

There is no merit in Hardy’s argument that under Hill v. Adams, 182 Ga. App. 848 (357 SE2d 300) (1987), Arcemont must bring a paternity action establishing the child as illegitimate prior to bringing a legitimation action. The child in Hill had been adjudicated to be the child of the mother’s husband as a matter of law in a divorce action. Hill held that the man who asserted that he was the biological father had to bring a paternity action, establishing himself as the father and the child as illegitimate, before proceeding to legitimate the child. In the eyes of the law in this case, on the other hand, the overwhelming evidence renders the child illegitimate.

2. The next question is whether Hardy retains standing to object to Arcemont’s legitimation petition.

Under the circumstances of this case, the standard which must be used to determine Arcemont’s right to legitimate the child is his fitness to have custody. Doe v. Chambers, 188 Ga. App. 879, 880 (1) (374 SE2d 758) (1988), citing In re Baby Girl Eason, 257 Ga. 292, 297 (358 SE2d 459) (1987); see Murphy v. Suddeth, 189 Ga. App. 212, 215 (3) (375 SE2d 254) (1988) (physical precedent only); but compare In re Ashmore, 163 Ga. App. 194 (293 SE2d 457) (1982). While Hardy is not the child’s “legal” father, he is the physical custodian to whom the mother entrusted the child. He has also provided child support, visited the child, and established a parental relationship with him. No blood relative of the deceased mother is seeking custody. We hold that he has standing to challenge Arcemont’s right to custody. See Sims v. Pope, 228 Ga. 289 (185 SE2d 80) (1971); compare In re Pickett, 131 Ga. App. 159 (205 SE2d 522) (1974).

Judgment affirmed in part and reversed in part.

Cooper and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A0037.
    TOTH v. THE STATE.
    (444 SE2d 159)
   McMurray, Presiding Judge.

Defendant was charged, via indictment, with possession of cocaine in violation of Georgia’s Controlled Substances Act. The evidence adduced at a jury trial revealed the following:

At about 3:00 in the afternoon on October 29, 1991, Deputy Jose Miquel Black of the Gwinnett County Sheriff’s Department went to the Georgia Department of Correction’s probation office in Gwinnett County to execute an arrest warrant. Deputy Black “pulled into the probation parking lot [and] parked as close to the front door as possible because [he] didn’t want to walk the person through the parking lot. ... As [the deputy] got out of [his patrol] car [he] noticed in the car next to [him] a fluorescent hat sitting on the seat and bottom up inside [t]he hat was a syringe.” Deputy Black “walked up into the probation waiting area and . . . asked whose vehicle it was and [defendant] identified it as his vehicle.” Deputy Black “asked [defendant] if [he] could get something out of [the suspect vehicle] and [defendant] says, . . . sure, and so [the deputy] walked to the vehicle and opened the driver’s door and reached across and retrieved the hat and the syringe. [Deputy Black and defendant then] walked back into the probation office and [the deputy] informed [defendant’s] probation officer[, Beth Chester of the Georgia Department of Corrections,] that [he] found [a syringe] inside [defendant’s] vehicle.” Deputy Black also informed Probation Officer Chester that defendant said the suspect vehicle “was owned by his brother-in-law and sister but that he had driven it to the office that day alone.”

Probation Officer Chester checked defendant’s file and discovered that defendant was at the probation office for an initial interview relating to probation imposed pursuant to defendant’s October 4, 1991, conviction for possession of heroin and possession of cocaine. Probation Officer Chester asked defendant “what [is] the syringe ... for [and defendant] told [her] that his brother-in-law, Vince Mara, was a diabetic and that the syringe was his and he used it for insulin injection. . . . [F]ive to ten minutes later, [defendant] told [Probation Officer Chester] that his brother-in-law . . . was not a diabetic, that he had just said that because it sounded good, and that this syringe was not used for insulin.” Probation Officer Chester then “asked [defendant] if he would consent to having his vehicle searched [and defendant] told [her] that he would.”

Officer Russell Bridgers of the City of Lawrenceville Police Department soon arrived at the probation office and “asked [defendant] again if he’d give consent... to have someone search the automobile and [defendant] said he would [and] executed a consent to search form. . . ,” Another officer from the City of Lawrenceville Police Department then searched the suspect vehicle using a dog trained to detect the presence of drugs. The search revealed “a small glassine bag, ziplock type bag, with a white powder residue in it from underneath the back seat.” The white powder residue tested “positive for cocaine.”

Pursuant to conditions of defendant’s probation, Probation Officer Chester “requested that Officer Bridgers take the Defendant to the nearest medical center [so] that a screen of a bodily substance of the Defendant be taken for the presence of controlled substances.” Officer Bridgers complied and samples of defendant’s blood were drawn at a nearby hospital. These samples later tested positive for the presence of metabolites which only appear after ingestion of cocaine.

Defendant was found guilty of possession of cocaine and sentenced to five years of confinement. However, the trial court ordered that the period of confinement be probated after 12 months at the Gwinnett Public Works Camp; that defendant pay fines and a monthly probation supervision fee and that defendant attend “NARCOTICS ANONYMOUS MEETINGS TWICE/WEEK UPON RELEASE.” This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first challenges the denial of his motion to suppress, arguing that the results of blood tests indicating the presence of cocaine-induced metabolites were unjustified because of a lack of probable cause to support such an intrusive bodily invasion. Defendant also asserts the following: “Appellant contends that although he may have been obliged to submit to blood and urine tests as a condition of his probation and the results used as evidence at a probation revocation hearing, if ordered and paid for by the State, but the Appellant has to order the test. . . and the Appellant was required to pay the costs of the tests, which would make the results of those test his private property and as stated in O.C.G.A. 24-9-20; ‘No person, who shall be charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction shall be compellable to give evidence for or against himself.’ (See Green v. The State, 260 Ga. 625 (1990), Green address [es] a urine sample opposed to a blood sample.)” These arguments are without merit. Green v. State, 194 Ga. App. 343 (2), 344 (3) (390 SE2d 285).

The judgment of conviction and sentence imposed upon defendant pursuant to his October 4, 1991, conviction for possession of heroin and possession of cocaine provides, in pertinent part, as follows: “Probationer shall, from time to time upon oral or written request by any Probation Officer, produce a breath, urine, and/or blood specimen for analysis for the possible presence of a substance prohibited or controlled by any law of the State of Georgia or of the United States.” This express condition of probation is a valid waiver of defendant’s Fourth Amendment right against warrantless searches because it is less obtrusive than alternative punishment; it is logically connected to defendant’s conviction for possession of heroin and possession of cocaine and it appears to be tied to a legitimate rehabilitative purpose. See Luke v. State, 178 Ga. App. 614, 616 (2) (344 SE2d 452). Further, the events leading to extraction of defendant’s blood for the purpose of drug testing reveal that Probation Officer Chester invoked the drug testing provision of defendant’s probationary sentence in good faith, i.e., her order for drug testing was not arbitrary, harassing or a ruse for an unlawful purpose. See Luke v. State, 178 Ga. App. 614, 616 (2), supra. Consequently, the request for defendant to produce a blood specimen for analysis was a lawful exercise of Probation Officer Chester’s authority. Green v. State, 260 Ga. 625, 626 (2) (398 SE2d 360); Nelson v. State, 199 Ga. App. 487, 488 (3) (405 SE2d 310).

2. In his second enumeration, defendant contends the trial court erred in allowing Probation Officer Chester’s testimony concerning retraction of defendant’s explanation that the syringe found by Deputy Black belonged to his diabetic brother-in-law and that his brother-in-law used the syringe for insulin injections. Defendant argues that this testimony amounts to proof of an incriminating admission he uttered without knowledge of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694).

“Miranda, by its very terms, does not apply to ‘general on-the-scene investigation.’ ” Shy v. State, 234 Ga. 816, 820 (218 SE2d 599). “So long as the interrogation is not aimed at obtaining information to establish a suspect’s guilt but is instead aimed at determining the nature of the situation upon the arrival of the [law enforcement officer] on the scene, some initial inquiry may, under the circumstances, be permissible before Miranda warnings are given. [Aldridge v. State, 247 Ga. 142, 144 (2) (274 SE2d 525)].” Lolley v. State, 259 Ga. 605, 606 (385 SE2d 285). In the case sub judice, Probation Officer Chester testified that defendant “told me that his brother-in-law, Vince Mara, was a diabetic and that the syringe was his and he used it for insulin injection [and that later] on ... , five to ten minutes later, [defendant] told me . . . that his brother-in-law in fact was not a diabetic, that he had just said that because it sounded good, and that this syringe was not used for insulin.” The inquiry which prompted this retraction came immediately after Deputy Black’s report that a syringe was found in the front seat of defendant’s car. Probation Officer Chester was not then familiar with defendant or defendant’s case. She was only aware that defendant was scheduled that afternoon for an initial interview relating to his probationary status for possession of heroin and possession of cocaine. These circumstances reveal that the question which prompted defendant’s retraction of his earlier statement regarding the purpose of the syringe was part of an initial on-the-scene investigation aimed at determining the nature of the situation presented by Deputy Black. Consequently, failure to inform defendant of his rights under Miranda v. Arizona, 384 U. S. 436, supra, did not require suppression of Probation Officer Chester’s testimony. See Minnesota v. Murphy, 465 U. S. 420 (104 SC 1136, 79 LE2d 409).

3. Next, defendant contends the trial court erred in denying his motion for directed verdict of acquittal, arguing the State failed to prove that he was in actual or constructive possession of cocaine. This contention is without merit. Evidence of a plastic bag with cocaine residue in a car over which defendant had exclusive control before his arrest, evidence of defendant’s elusive behavior after initial questioning by his probation officer and expert testimony that metabolites which appear only after ingestion of cocaine were discovered in defendant’s blood is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of cocaine as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Green v. State, 260 Ga. 625 (1), supra.

4. Defendant contends the trial court impermissibly allowed the State to introduce into evidence a copy of his October 4, 1991, conviction and sentence for possession of heroin and possession of cocaine.

“ ‘Where evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant’s character in issue. (Cits.)’ Worthy v. State, 180 Ga. App. 506, 508 (3) (349 SE2d 529).” Lanzo v. State, 187 Ga. App. 616, 617 (2), 618 (c) (371 SE2d 119). In the case sub judice, there is little doubt that admission of a copy of defendant’s prior conviction and sentence for possession of heroin and possession of cocaine placed his character in issue. However, evidence of this conviction and sentence was relevant to explain defendant’s presence at the Gwinnett County probation office on the day of his arrest. In fact, admission of evidence of defendant’s prior conviction and sentence was virtually unavoidable since suspicion of the unlawful conduct constituting the basis of the crime charged in the case sub judice arose on the premises of the government agency charged with supervising defendant’s probationary sentence for these prior offenses. Consequently, there was no harm in allowing admission of a copy of defendant’s October 4, 1991, conviction and sentence for possession of heroin and possession of cocaine.

5. In his fifth enumeration, defendant contends the trial court erred in admitting the hat and syringe seized by Deputy Black into evidence, arguing the deputy’s search of the vehicle was without consent or probable cause. This contention is without merit.

Deputy Black initially observed the syringe and hat lying in plain view through a window of a vehicle parked in a public area. This observation therefore did not involve an unauthorized intrusion of the vehicle. See Starks v. State, 204 Ga. App. 185 (419 SE2d 75). Further, there was ample proof that Deputy Black seized the hat and syringe from the vehicle pursuant to defendant’s free and voluntary consent, i.e., consent obtained without express or implied duress or coercion. Maxwell v. State, 211 Ga. App. 73 (438 SE2d 389).

6. Defendant’s sixth enumeration urges that “[t]he Trial Court erred in its response to a Jury question; ‘Do we concern ourselves with the legality of the arrest?’, in that the Court’s response was ‘No[.]’ ” The argument supporting this enumeration provides as follows: “Although the Court responded to the Jury’s question but did not include Defendant’s Request to Charge Number 4 in its form in the pattern charge. And the legality of the arrest would fall within the circumstances connected with the arrest of Appellant.”

“Any enumerated error which is not supported in the brief by citation of authority or argument shall be deemed to have been abandoned.” Court of Appeals Rule 15 (c) (2). The argument supporting this enumeration is void of citation of authority or logic. Further, an examination of the pertinent portion of the trial transcript reveals no argument supporting defendant’s objection to the trial court’s response to the jury’s question. Consequently, defendant’s sixth enumeration is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Keith v. State, 204 Ga. App. 404, 405 (2) (419 SE2d 491).

7. Defendant’s seventh and eighth enumerations challenge the trial court’s charge to the jury. However, the record shows that defense counsel stated that he had “no objection” when the trial court asked for exceptions to its proposed charge to the jury. Consequently, defendant waived his right to assert a charging error on appeal. Grissett v. State, 199 Ga. App. 547 (1) (405 SE2d 542); Davis v. State, 209 Ga. App. 187, 189 (4) (433 SE2d 366).

8. In his ninth enumeration of error, defendant contends the trial court’s sentence is cruel and unusual because he “was sentenced so he would not receive any treatment that may have considered him in a more favorable light, allow him the opportunity for special programs or incentive.”

Defendant was sentenced to five years of confinement to be probated after 12 months at the Gwinnett Public Works Camp. Defendant is also required to pay fines and a monthly probation supervision fee and to submit to special conditions of probation. This punishment is well within the range authorized by law for possession of cocaine, OCGA § 16-13-30 (c). Consequently, defendant’s “contention of cruel and unusual punishment is meritless. Sherrell v. State, 170 Ga. App. 798 (318 SE2d 221); Fain v. State, 165 Ga. App. 188 (300 SE2d 197). This court is without authority to review sentences that are within the statutory range. Id.” Ortiz v. State, 188 Ga. App. 532, 537 (7) (374 SE2d 92).

Decided May 17, 1994.

Wayne L. Burnaine, for appellant.

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

9. In his final enumeration, defendant contends the trial court’s sentence requiring him to attend “NARCOTICS ANONYMOUS MEETINGS TWICE/WEEK UPON RELEASE” is not a valid condition of probation because it takes “away the voluntary aspect of the program and requiring other members to reveal their identity.”

To warrant reversal, harm as well as error must be shown. Blanton v. State, 191 Ga. App. 454, 455 (2) (382 SE2d 133). In the case sub judice, defendant fails to show harm in the requirement that he attend “NARCOTICS ANONYMOUS MEETINGS TWICE/WEEK UPON RELEASE.” Further, we find no possible injury to defendant in requiring such a condition of probation. It is less obtrusive than confinement; it is logically connected to defendant’s conviction for possession of cocaine and it appears to be tied to a legitimate rehabilitative purpose.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

       Officer Bridgers testified that he informed defendant before execution of the consent to search form that a dog trained to detect the presence of illegal substances would be used to conduct any search of the suspect vehicle.


author: Pope, Chief Judge.

text:
    A94A0390.
    TEDFORD v. THE STATE.
    (444 SE2d 156)
   Pope, Chief Judge.

Defendant Larry C. Tedford was found guilty following a bench trial of violating the Georgia Controlled Substances Act (possession of cocaine) and possessing a firearm. He appeals, enumerating as error the denial of his motion to suppress.

As is pertinent to this issue, the record shows that the Cobb County Police Department received a call from a cook at the Waffle House located at Delk and Powers Ferry Roads who told the dispatcher that a customer approached him and said that he had been talking to a white male driving a blue vehicle with Georgia license tag number BX 307 outside the restaurant and that the man told the customer to leave the area because he was going to rob the restaurant. The officer who responded to the call testified that when he arrived he parked directly behind the vehicle matching the description given in the dispatch and that he immediately observed defendant opening his door and exiting his vehicle. The officer testified he got out of his car and “grabbed the suspect, and had him put his hands on the car, and did a frisk to search for weapons.” During the pat-down search the officer found a loaded semi-automatic handgun in defendant’s right front pocket, and the officer immediately placed the defendant under arrest for carrying a concealed weapon without a permit. The officer then conducted a more intrusive search of the defendant, during which the officer found two packages of a substance subsequently identified as cocaine. The officer also looked inside defendant’s vehicle, where he observed another semi-automatic handgun on the front seat. The officer further testified that he talked to the Waffle House employee who called police, but that the customer who gave the employee defendant’s description and the information that defendant was going to rob the restaurant had left the restaurant and did not leave his name.

Defendant, relying on Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990) and similar cases, argues that the information received by police officers was insufficient to authorize the initial investigatory detention and pat-down search and that, therefore, the trial court erred in denying his motion to suppress. We disagree and hold that the situation in the case at bar is distinguishable from Johnson and other like cases.

In Johnson an anonymous tipster called police and stated that “two black men in a black truck were selling drugs to kids on Lewis Street.” Id. at 538. Based on the United States Supreme Court decision in Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990) we held that the trial court erred in denying the motion to suppress both because the information provided was “general and completely lacking in detail” and because the “tip made no prediction about future behavior by which its reliability could be tested.” Johnson, 197 Ga. App. at 539. “ ‘ “Some tips, completely lacking indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.” ’ ” Id. at 539, citing Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972). However, the “tip” in this case does not fall into this category. The case at hand does not involve the situation where an anonymous caller telephones police with general information about alleged criminal activity. Rather, in this case a customer, at some danger to himself, approached an employee of a restaurant and gave the employee a face-to-face warning that the restaurant was about to be robbed. The customer provided a general description of the individual who approached him and a more detailed description of the individual’s vehicle, as well as the individual’s specific location. The customer also relayed the basis for his warning, that the individual told him to leave the area because he was about to rob the restaurant. The customer then left the premises, and there is nothing in the record to show that the customer was even aware of what action the restaurant employee took in response to the information. Information obtained under these circumstances has greater indicia of reliability than an anonymous telephone tip. Cf. State v. McFarland, 201 Ga. App. 495 (411 SE2d 314) (1991). Moreover, although the court in Alabama v. White placed great emphasis on the fact that the tipster in that case accurately predicted the suspect’s future behavior, in this case defendant was already on the premises of the restaurant and all that remained was for him to enter and commit the crime. According to the officer, defendant was exiting his vehicle when he arrived, and at that point there would have been little else for the officer to observe except for the actual commission of the crime.

“ ‘The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) ((1968))) recognizes that it may be the essence of good police work to adopt an intermediate response ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Cits.)’ (Punctuation omitted.) [Cits.]” State v. Vansant, 208 Ga. App. 772, 774-775 (431 SE2d 708) (1993). “ ‘What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. . . . “Where no circumstances at all appear which might give rise to an articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been violated, the act of . . . detaining [an individual] and its occupants must be judged as an impermissible intrusion on the rights of the citizen.” Brooks v. State, 129 Ga. App. 109, 111 (198 SE2d 892) (1973).

“ ‘What is implicit in the above is that each case must turn on its own independent circumstances bearing on the issue of reasonableness of seizure.’ Brisbane v. State, 233 Ga. 339, 341-342 (211 SE2d 294) (1974).” State v. Holton, 205 Ga. App. 434, 436 (1) (422 SE2d 295) (1992). “The right of a police officer to stop an automobile [or detain an individual] ‘is always dependent on the exigencies of the immediate situation.’ [Cit.]” Vansant, 208 Ga. App. at 775. We find that the facts and the circumstances in this case gave rise to a reasonable and articulable suspicion of criminal activity justifying the investigatory detention of defendant.

Decided May 17, 1994.

Steven P. Berne, for appellant.

Thomas J. Charron, District Attorney, D. Victor Reynolds, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Having so concluded, the question remains whether the officer was also authorized to conduct a weapons search incident to the investigatory detention. Just as it is not unreasonable for officers to anticipate that suspected drug dealers might be armed, it is certainly not unreasonable for officers to anticipate someone about to commit a robbery of a restaurant would use a weapon in the commission of that crime. See State v. Jarrells, 207 Ga. App. 192 (4) (427 SE2d 568) (1993). “It has long been recognized . . . that an officer with an articulable suspicion sufficient to authorize an investigative detention of a suspect is not constitutionally required to place himself in jeopardy and may, under certain circumstances, conduct a preliminary search for weapons.” Id. at 193 (3).

At the point the officer discovered the concealed weapon and defendant admitted carrying the weapon without a permit, the officer properly placed defendant under arrest. The more intrusive search of defendant was thus authorized as incident to a lawful arrest. “ ‘Once a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband.’ [Cit.]” Paxton v. State, 160 Ga. App. 19, 20 (1) (285 SE2d 741) (1981). The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A0267.
    BERTONE v. WILKINSON.
    (444 SE2d 576)
   Pope, Chief Judge.

This appeal concerns whether the trial court correctly held that OCGA § 9-2-61 is not applicable to third-party complaints and correctly dismissed plaintiff Lewis Bertone’s complaint filed against defendant Rick Wilkinson, which was filed within six months after Bertone dismissed his third-party complaint against Wilkinson in a separate but related suit. In this action, Bertone seeks damages for personal injuries he allegedly suffered when, after an altercation between Bertone and Wilkinson’s friend (the plaintiff in the original action) had subsided, Wilkinson attacked and injured Bertone. It is undisputed that Bertone’s third-party action was timely filed, but that Bertone’s complaint seeking damages for personal injuries against Wilkinson is only timely if it is subject to the renewal provisions set forth in OCGA § 9-2-61.

We do not agree with the trial court’s holding that a dismissed third-party complaint may never be renewed. OCGA § 9-2-61 (a) allows a “plaintiff” to renew his case after dismissal without prejudice. Certainly a defendant who filed a third-party complaint is a “plaintiff” for purposes of that third-party action as much as a defendant who filed a counterclaim is a “plaintiff” for purposes of the counterclaim. See Cale v. Jones, 176 Ga. App. 865 (1) (338 SE2d 68) (1985) (holding counterclaims are subject to renewal). Indeed, our legislature has evidenced their intent that third-party actions should be subject to the renewal statute by specifically providing in OCGA § 9-11-41 (c) that third-party claims are subject to that statute, which provides for dismissals of actions and their recommencement within six months. Moreover, the trial court’s order is erroneous to the extent it suggests that a different style of the case means it is not the renewal of the same cause of action. That reasoning has been rejected by our Supreme Court which held: “If the cause of action is the same in both cases; if by the same party or his legal representative, and against a person from whom relief was prayed in the first suit, the second action may be renewed.” (Emphasis supplied.) Cox v. Strickland, 120 Ga. 104, 110 (47 SE 912) (1904).

However, our holding that OCGA § 9-2-61 is applicable to third-party complaints does not end our inquiry in this case. It is well-settled that while a renewal action is not required to be identical to the first action, “the substantial rights of the plaintiff, or liability of the defendant to him or to one another, can not be enlarged beyond that indicated by the pleadings in the first case.” Id. The trial court found that the third-party complaint filed by Bertone in the related action was sufficient only to give Wilkinson notice of a claim for contribution and indemnification of any damages that Bertone was found to be liable to the plaintiff in the original action. Bertone, the appellant herein, did not make that pleading available for review by this court. Accordingly, we must assume that the trial court correctly held that the third-party complaint in the related suit was only sufficient to put Wilkinson on notice of claims for contribution and indemnification and did not put him on notice of a claim for personal injuries within the applicable two-year statute of limitation. Accordingly, the judgment of the trial court that the statute of limitation has run on any claim by Bertone for personal injuries against Wilkinson must be affirmed.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Decided April 11, 1994

Reconsideration denied May 18, 1994

Steven M. Youngelson, J. Andrew Ziolo, for appellant.

Bovis, Kyle & Burch, Charles M. McDaniel, Jr., for appellee.

On Motion for Reconsideration.

On motion for reconsideration Bertone argues that this court had a duty to have the record on appeal amended to include the third-party complaint in question. Although the appellant has a duty to show error in the record, the clerk of this court made inquiry concerning whether the Clerk of the State Court of Cobb County had forwarded the full record to this court as requested in the notice of appeal. After being assured the full record was before this court, we issued our opinion.

Attached to Bertone’s brief in support of his motion for reconsideration is a copy of the third-party complaint. We note that due to the styling of the complaint it was assigned another civil action number and presumably was never made a part of the record in this case. “The burden is on him who asserts error to show it affirmatively by the record. A brief cannot be used in lieu of the record for adding evidence.” (Citations and punctuation omitted.) Burks v. First Union Mtg. Corp., 209 Ga. App. 41, 42 (432 SE2d 822) (1993). As the third-party complaint is not properly before this court, we cannot consider it, and we must affirm the trial court’s findings concerning that document. Id.


text:
    A94A0101.
    VOXCOM, INC. et al. v. BODA.
    (444 SE2d 164)
   Pope, Chief Judge.

Plaintiff/appellee Stephen A. Boda brought suit against appellant Voxcom, Inc. alleging breach of the severance pay provision of the parties’ employment contract and against Voxcom’s president, David Good, alleging malicious interference with contractual relations. The jury awarded Boda $63,527 on his claim against Voxcom but found in favor of Good on Boda’s malicious interference claim. Voxcom appeals, enumerating as error the denial of its motion for mistrial made when Boda, during cross-examination by Voxcom’s counsel, testified that Voxcom had made “a couple of offers to settle.”

OCGA § 24-3-37 prohibits the introduction of evidence concerning offers to settle or compromise a disputed claim, and Boda’s testimony concerning offers to settle was clearly inadmissible. The question remains, however, as to whether the trial court’s refusal to grant a mistrial requires reversal under the facts of this case. “A trial court’s decision to deny a motion for mistrial will not be disturbed absent a manifest abuse of discretion. [Cits.] ‘Where a motion for a mistrial is made on the ground of inadmissible evidence illegally placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of discretion, the refusal of the trial court to grant a mistrial is not error. (Cits.)’ [Cit.]” Ross v. Hagler, 209 Ga. App. 201, 203 (1) (433 SE2d 124) (1993).

The record in this case shows that the line of questioning immediately preceding the inadmissible testimony concerned whether Boda had discussed severance pay with Voxcom after he was terminated. Boda responded that he and his attorneys had discussed it. Voxcom’s counsel made reference to the filing of the lawsuit being a form of conversation and then questioned Boda again concerning whether he had gone to Voxcom’s president and asked him for the severance pay. Boda responded that he had not, and Voxcom’s attorney asked: “Did you go to your attorneys and your attorneys communicated with Voxcom during the first year after the severance?” Boda responded “I’m not sure what the time frame was of when we discussed that, but they’ve made a couple offers to settle with me over the seven-year period. . . .” Voxcom’s counsel told the witness that that was not the question asked and again posed the question of whether or not Boda had inquired about severance pay during the first year after he was terminated.

When cross-examination of the witness was completed, and after the jury had been dismissed for an overnight recess, counsel moved for a mistrial based on the testimony concerning settlement offers. The trial court ordered the court reporter to transcribe the portion of the testimony complained about and after reviewing the transcript, denied the motion for mistrial and indicated its intent to instruct the jury to disregard any statements made about offers to settle. Voxcom’s counsel excepted to the court’s ruling, but requested that instead of curative instructions the jury be informed that there had been no offers to settle made in the case. Pursuant to this request, the following stipulation was read before the jury and made a part of the record in the case: “The parties have stipulated, meaning there’s an agreement between the parties, that there have been no settlement offers in this case, and the jury should not infer from the testimony or the evidence that there ever have been any settlement offers.”

Under these facts, a mistrial was not mandated. Although the witness’ response was not totally responsive to the question posed, the testimony was elicited on cross-examination and it was Voxcom’s counsel who first made reference to the filing of the lawsuit, and then inquired about conversations between Boda’s counsel and Voxcom’s representatives. Moreover, pursuant to the stipulation read to the jury, the jury was not merely instructed to disregard the testimony but was in essence instructed to disbelieve the testimony of Boda concerning settlement offers. A mistrial was not essential to the preservation of a fair trial in this case, and we find no manifest abuse of discretion in the trial court’s denial of the motion. See Ross v. Hagler, 209 Ga. App. at 203 (1); Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 506 (4) (277 SE2d 785) (1981); Progressive Cas. Ins. Co. v. West, 135 Ga. App. 1 (2) (217 SE2d 310) (1975).

Decided May 18, 1994.

Webb & Lindsey, Richard P. Lindsey, for appellants.

Zimring & Ellin, Martin L. Ellin, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A0488.
    BCS FINANCIAL CORPORATION v. SORBO et al.
    (444 SE2d 85)
   Blackburn, Judge.

The appellant, BCS Financial Corporation, filed the instant petition for foreclosure of a 1988 Redman Lakeside mobile home purchased by appellee Kenneth Sorbo and his wife on July 7, 1988, pursuant to the terms of a mobile home retail installment sales contract and deed to secure the indebtedness executed in favor of Country Squire Mobile Homes, Inc., BCS Financial’s predecessor in interest. The Sorbos discontinued payment under the terms of the contract based upon the seller’s failure to repair numerous defects that existed in the home at the time that the home was delivered. Sorbo responded to the petition, asserting several defenses, including breach of express and implied warranties, and breach of the contract based upon the defects in the home, and filed a counterclaim for damages arising from the alleged breach of the contract and warranties.

BCS Financial subsequently moved to add Redman Homes, the manufacturer of the home, as a party defendant, and the trial court granted the motion, finding that the presence of Redman Homes, Inc. was required for the granting of complete relief. The case proceeded to trial, and. BCS Financial’s motions for directed verdict were denied by the trial court. The jury subsequently returned a verdict in favor of Sorbo on his counterclaim for $10,000, and also awarded Sorbo title to the mobile home. The jury further found in favor of Redman Homes, Inc. on BCS Financial’s third-party complaint, and a judgment was entered on the jury’s verdict. The trial court denied BCS Financial’s motion for new trial or in the alternative, motion for j.n.o.v., but reduced the amount of damages awarded tó Sorbo to $5,016.65 based upon the court’s conclusion that the amount previously awarded was excessive. This appeal followed.

1. Initially, BCS Financial asserts that the trial court erred in failing to direct a verdict in its favor on the ground that Sorbo failed to show any damages as a result of the breach of any warranties. We disagree.

“ ‘The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. In a proper case, any incidental and consequential damages under Code section 11-2-715 may also be recovered.’ OCGA § 11-2-714 (2 and 3).” Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 115 (363 SE2d 312) (1987). At trial, Sorbo presented evidence of the purchase price of the mobile home ($19,320), the base price of the home ($11,674), and the total invoice price of the home ($12,649), and this “was some evidence of the value the [mobile home] would have had if it had been as warranted. . . .” Id. at 116.

Sorbo also presented the testimony of the owner of the mobile home park where the Sorbos resided who had purchased and sold mobile homes for 15 years. This witness testified that she was generally familiar with the values of mobile homes and in fact, she and her husband were in the mobile home repair business. She testified that it would cost between $5,000 and $7,000 to repair the mobile home in the condition that it was in at the time of trial, which would include replacing the roof, doors, and windows because of water damage, and the fact that the home was not properly leveled. She saw the home at the time that it was delivered to the lot, and at that time, the home was not level and the roof was buckling. She opined that the mobile home’s value was between $4,000 to $6,000, and the rental value of the home was between $60 and $70 per week. Contrary to BCS Financial’s assertions, this evidence provided the jury with a basis from which to compute the amount of damages suffered by Sorbo without speculating.

2. Next, BCS Financial asserts that the implied warranty of fitness was improperly charged as there was no evidence that Sorbo relied on the skill and judgment of the seller. However, this enumeration is not supported in its brief by citation of authority or argument, and is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Jabaley v. Jabaley, 208 Ga. App. 179 (430 SE2d 119) (1993). BCS Financial further fails to support its seventh enumeration of error with citation of authority or argument, and it is likewise deemed abandoned.

3. BCS Financial also contends that a directed verdict, j.n.o.v., or new trial was warranted on the grounds that any warranties by the seller were disclaimed in the installment contract, and accordingly, recovery against the corporation is precluded. However, this disclaimer cannot constitute an exclusion of the implied warranty of the seller that the mobile home was fit for the ordinary purposes for which mobile homes are used, that is, as family residences. See OCGA § 11-2-314. The disclaimer was not conspicuous, and “ [exclusions of implied warranties of fitness or merchantability to be effective are required to be by writing and conspicuous. [Cit.]” White v. First Fed. &c. Assn. of Atlanta, 158 Ga. App. 373 (1) (280 SE2d 398) (1981). Moreover, the disclaimer specifically provided that no express or implied warranties are made unless covered by a separate agreement and an express warranty was provided by the manufacturer.

4. BCS Financial additionally argues that the trial court erred in allowing a recovery to Sorbo that exceeded the amount paid to BCS Financial. However, the evidence produced at trial shows that the Sorbos made a cash down payment of $1,053, and made at least 27 payments of $294.95 pursuant to the terms of the contract. The amount paid by the Sorbos pursuant to the terms of the installment contract exceeded the judgment entered in favor of Sorbo. While BCS asserts that the trial court should not, in effect, have allowed Sorbo to set off his warranty claim in this foreclosure action, this issue was not raised in a separate enumeration of error. “It is axiomatic, however, that enumerations of error cannot be expanded by argument to include matters not originally enumerated by the appellant as error. [Cits.]” Robertson v. U-Haul Co. of Western Ga., 208 Ga. App. 222, 223 (1) (430 SE2d 113) (1993). Thus, we are without authority to consider this assertion.

5. BCS Financial also maintains that the trial court erred in failing to direct a verdict because satisfactory performance was not a condition of payment, and Sorbo was in default under the terms of the installment contract. However, under OCGA § 44-14-233, in answering a petition in a forfeiture action, a defendant may assert any legal or equitable defenses or a counterclaim, and by implication, such defenses will be considered in the determination of whether a foreclosure petition should be granted.

Decided March 16, 1994

Reconsideration denied May 23, 1994

Allen W. Johnson, for appellant.

Dye, Tucker, Everitt, Wheale & Long, John B. Long, Knox & Zacks, Ronald C. Melcher, Kilpatrick & Cody, Ted H. Clarkson, for appellees.

6. In his sixth enumeration, BCS Financial contends that the jury’s verdict shocked the conscience and was excessive. “However, where, as here, the judgment of the trial court awards damages within the range of the [trial] testimony, this court will not reverse the judgment of the trial court on the ground the judgment was excessive.” (Citations and punctuation omitted.) Choi v. Wan, 207 Ga. App. 73, 74 (5) (427 SE2d 64) (1993).

7. Lastly, we reject BCS Financial’s assertion that a directed verdict or j.n.o.v. was warranted because the verdict, in essence, makes the corporation a guarantor on the contract, allegedly in contravention of the law. It is the specific language contained in the retail installment contract which makes the corporation a guarantor. The contract provides in conspicuous bold letters “NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH PROCEEDS HEREOF.” BCS Financial voluntarily accepted the terms of this contract upon assignment of the contract to the corporation, and cannot now be heard to complain of obligations the corporation voluntarily and knowingly assumed.

Judgment affirmed.

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

       Although both Kenneth and Della Marie Sorbo were named in the contract as buyers, only Kenneth Sorbo is involved in this action.

       The seller of the home, Country Squire Mobile Home, Inc., has allegedly filed for bankruptcy protection and is not involved in this action.

       Redman Homes also moved for a directed verdict, and after reserving its ruling on the motion until the close of the evidence, the trial court denied the motion.


text:
    A94A0812.
    MARSH v. CRAWFORD LONG HOSPITAL OF EMORY UNIVERSITY et al.
    (444 SE2d 357)
   Blackburn, Judge.

Gay I. Marsh appeals the trial court’s order granting Crawford Long Hospital of Emory University’s (Crawford Long) motion for summary judgment. Marsh brought this action sounding in professional negligence and fraud against Dr. John Bostwick and appellee Crawford Long. In her complaint, Marsh alleged that she requested and consented to an abdominal liposuction; however, Dr. Bostwick performed an abdominoplasty, a more invasive surgery which left a scar across her entire abdomen and that Dr. Bostwick and Crawford Long conspired to keep her from discovering their alleged mistake.

The patient history nursing assessment form, filled out upon Marsh’s admission to the hospital, indicated that she was scheduled for bilateral mastectomy and liposuction. The intraoperative record indicated that the operative procedure to be performed was an abdominoplasty and a bilateral mastectomy. The intraoperative record also contained a checklist for the “verification of procedure/location;_verbal;_consent form;_sterilization permit.” This section of the intraoperative record was not completed. Furthermore, Marsh maintains that she signed a “consent to surgery” form on which she hand wrote her consent for liposuction as the consent form listed only the bilateral mastectomy procedure. No such consent form is contained in the record. The consent form contained in the record reflects that Marsh consented to a bilateral mastectomy and an abdominoplasty. Marsh deposed that this consent form was presented to her after the surgery and that she was told to sign it by the doctor’s assistant.

1. On appeal, Marsh contends that the trial court erred in granting Crawford Long’s motion for summary judgment “by apparently determining the Hospital’s nurses had no duty as to Gay I. Marsh and that such responsibility fell on the shoulders of Dr. Bostwick.”

Marsh’s experts and several nurses from Crawford Long deposed that a patient’s chart should be cross-referenced to determine that the appropriate procedure is being performed. Marsh alleges that Crawford Long failed to discover the discrepancies in the documents contained in her chart with respect to the procedure to be performed. Crawford Long argues that the doctor is in charge of the operating room and that the hospital’s nursing staff is not responsible for mistakes made by the doctor regarding what procedure is performed citing Hoffman v. Wells, 260 Ga. 588 (397 SE2d 696) (1990).

In Hoffman, the Georgia Supreme Court determined that the hospital employees were not responsible for the plaintiff’s injuries which resulted from the doctor’s performance of a surgical procedure on the wrong hand. The Supreme Court relied on the fact that the determination to proceed with the surgery was a medical decision made by the doctor in the operating room. Furthermore, the nursing staff informed the doctor that the patient’s admissions chart and consent form indicated that the surgery was scheduled to be performed on the patient’s right hand. The doctor nevertheless performed the surgery on the left hand. The court noted that “[a] hospital owes a duty of reasonable care to its patients and is liable for the injuries negligently inflicted upon its patients by the nurses and other employees of the hospital. [Cit.]” Id. at 589.

Decided May 4, 1994

Reconsideration denied May 23, 1994

Simmons & Toliver, A. Leroy Toliver, Joseph H. King, Jr., for appellant.

Allen & Peters, Hunter S. Allen, Jr., Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, Stephen H. Sparwath, for appellees.

“[A] hospital is not an insurer of patient safety and negligence chargeable to the institution must be proven; as a general rule, a private hospital is under a duty to exercise such reasonable care in looking after and protecting patients as the patient’s condition, as known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient may require. ...” Deese v. Carroll City County Hosp., 203 Ga. App. 148, 149 (416 SE2d 127) (1992).

In the present case, Dr. Bostwick made the medical determination for an abdominoplasty. However, Crawford Long’s nursing staff never discussed with Marsh or Dr. Bostwick the discrepancies in Marsh’s records with regard to what procedure was to be performed. Our Supreme Court has determined that “ ‘[t]here is no transfer of liability [to the doctor] for the negligence of an employee in the performance of clerical or administrative tasks not requiring the exercise of medical judgment even though these tasks are related to the treatment of the patient.’ [Cit.]” Hoffman, supra at 590. Therefore, the trial court erred in determining that the hospital owed no duty to Marsh and it is for the jury to determine whether Crawford Long breached its duty of reasonable care.

2. Crawford Long contends that Marsh failed to appeal the trial court’s grant of its motion for summary judgment with respect to Marsh’s claims for fraud and conspiracy. We agree. Marsh’s enumeration of error specifically addressed the trial court’s determination with regard to her negligence claim. In her brief, Marsh attempts to argue that her fraud claim should have survived Crawford Long’s motion. However, this issue was not enumerated as error and we are without authority to consider it. Robertson v. U-Haul Co. of Western Ga., 208 Ga. App. 222 (1) (430 SE2d 113) (1993).

Judgment affirmed in part and reversed in part.

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


text:
    A94A0067.
    CINCINNATI INSURANCE COMPANY v. PLUMMER et al.
    (444 SE2d 378)
   McMurray, Presiding Judge.

Plaintiff Cincinnati Insurance Company (insurer) issued an automobile liability insurance policy to Kenneth Plummer and his spouse Connie Plummer. Jessica Slusser was a passenger in the covered vehicle when the Plummers’ daughter, Cindy Plummer, drove the car off the road. Slusser brought a tort action against Cindy Plummer to recover for her personal injuries. The insurer denied coverage under its liability policy for the damages sought in that underlying tort action and commenced this action for declaratory judgment to determine its rights and duties under the policy. Cross-motions for summary judgment were argued before the court. The trial court denied the insurer’s motion for summary judgment and granted that of defendants Plummer and Slusser, holding that liability coverage was afforded Cindy Plummer under the insurer’s policy for injuries Plummer may have caused Slusser. This direct appeal followed.

The circumstances of the automobile mishap are undisputed. On the date of the accident, Cindy Plummer was 14 years old and Jessica Slusser was 13. Neither girl was licensed to drive and neither had a learner’s permit. While the Plummers were asleep, Cindy took the car keys without permission from Connie Plummer’s purse. The girls then silently steered the car out of the driveway and drove about the neighborhood. The accident occurred at 5:00 a.m. when Cindy lost control and the car struck an embankment. In depositions, each girl testified that they knew they had no express permission to take the car. Once before, Cindy had taken her mother’s car keys from the kitchen table and backed the car down the driveway in order to have access to a basketball net at the top of the drive. When Connie Plummer observed this, she scolded her daughter for driving without a license. Thereafter, Mrs. Plummer kept the car keys in her purse but did not take steps to hide them or keep them locked away.

Based upon these undisputed facts, the insurer moved for summary judgment, relying on an exclusion which stated: “We do not provide Liability Coverage for any person: ... (8) Using a vehicle without a reasonable belief that that person is entitled to do so.” Defendants filed an opposing motion for summary judgment, contending that liability coverage was afforded under the policy because the exclusion relied on by the insurer did not apply to family members of the named insured. The separate orders of the trial court denying the insurer’s motion and granting defendants’ motion are enumerated as error. Held’.

1. The first issue for resolution is the application of the policy language excluding liability coverage to “any person using a vehicle without a reasonable belief that that person is entitled to do so.” The language of this exclusion is that of an “easy reading” policy rather than the traditional “omnibus” clause. United Svcs. Auto. Assn. v. Lail, 192 Ga. App. 487, 488 (1) (385 SE2d 424). “The language ‘any persons’ refers to each of the nine exclusions listed, including the one in question. It is clear that ‘any person’ means just that, including the named insured.” Ga. Farm Bureau Mut. Ins. Co. v. Fire &c. Ins. Co. of Connecticut, 180 Ga. App. 777, 778 (350 SE2d 325). Likewise, the exclusion of “any person using a vehicle without a reasonable belief that that person is entitled to do so” applies to a family member of the named insured. Omni Ins. Co. v. Harps, 196 Ga. App. 340, 342 (396 SE2d 66). (Exclusion applied to spouse of named insured who held no reasonable belief that he had permission to drive his wife’s car when he had no driver’s license.) See also Robertson v. Lumbermen’s Mut. Cas. Co., 160 Ga. App. 52, 54 (2) (286 SE2d 305), overruled on other grounds Grange Mut. Cas. Co. v. Brinkley, 182 Ga. App. 273 (355 SE2d 767). Although Slusser points to the fact that the term “family member” is printed throughout the policy in bold-faced type in an attempt to find an ambiguity which should be construed strictly against the insurer as the drafter, we note that bold-faced type merely indicates a term which is expressly defined by the policy. No judicial construction of the unambiguous term “any person” is authorized. Ga. Farm Bureau Mut. Ins. Co. v. Fire &c. Ins. Co. of Connecticut, 180 Ga. App. 777, 778, supra. Accord Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga. App. 513, 514 (1) (330 SE2d 443). No public policy precludes the application of this exclusion. Cook v. Prudential Property &c. Ins. Co., 206 Ga. App. 492, 493 (2) (426 SE2d 222). In the case sub judice, the exclusion applying to “any person” is not rendered inapplicable simply because the tortfeasor is a family member of the named insured. “The exclusion is applicable as against ‘any person’ and, in any alleged insured event, it is a relevant inquiry whether the circumstances are such that the ‘insured person’ had a reasonable belief that he or she had permission to use the vehicle.” Omni Ins. Co. v. Harps, 196 Ga. App. 340, 342, supra. Consequently, if Cindy Plummer held no reasonable belief that she was entitled to drive her mother’s vehicle, then the exclusion relied on by the insurer would apply to deny liability insurance coverage for legal damages for which she might be responsible. The grant of defendants’ motion for summary judgment awarding liability coverage was erroneous.

2. The undisputed facts show that Cindy Plummer had no driver’s license or permit. She previously had been scolded by her mother for moving the car a few feet in the family’s driveway without her mother’s prior consent, supervision, and assistance. She knew that she did not have permission to take the car. Nevertheless, she purloined the keys from her mother’s purse after her parents were asleep and drove the vehicle without the supervision of a licensed driver in the vehicle. “The use of the term ‘reasonable belief’ in the exclusionary clause provides an objective standard. . . . From the language of the clause it is clear that coverage is excluded if the driver (a) knew he was not entitled to drive the vehicle, or (b) if he claimed he believed he was entitled to drive the vehicle, but was without reasonable grounds for such belief or claim. [Cit.]” Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga. App. 513, 514 (1), supra. Defendants concede that Cindy Plummer had no express permission to take the car but urge that a fact question exists as to whether the failure of Mrs. Plummer to take stricter measures to prevent surreptitious access to her car keys gave Cindy implied permission, to move the vehicle. However, the bare fact that the parents did not hide the keys simply is not any evidence that the unlicensed 14-year-old reasonably believed her parents would ratify an unsupervised 4:00 a.m. frolic and jaunt throughout the neighborhood in defiance of their earlier express prohibition. A reasonable belief that an unlicensed 14-year-old has implied permission to take and drive another’s automobile will not be inferred merely from the existence of the parent-child relationship and from non-permissive access to a set of keys to that vehicle. See Samples v. Southern Guaranty Ins. Co. of Ga., 197 Ga. App. 258, 259 (398 SE2d 220). “As an unlicensed driver, [Cindy Plummer] could not have ‘reasonably’ believed that [s]he was entitled to drive the insured vehicle or any other vehicle, [without permission and supervision from an appropriate authority]. Accordingly, the trial court should have granted [the insurer’s] motion for summary judgment.” Safeway Ins. Co. v. Jones, 202 Ga. App. 482, 483 (415 SE2d 19). Accord Johnson v. Blue Ridge Ins. Co., 189 Ga. App. 616 (376 SE2d 703). See also Rogers v. Travelers Indem. Co. of America, 202 Ga. App. 77 (1) (413 SE2d 254). Compare Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 162 (2) (390 SE2d 52). (Exclusion inapplicable to 15-year-old with learner’s permit who, under directions from her stepfather to bring the car straight home, drove without the supervision of a licensed driver at least 18 years of age in violation of OCGA § 40-5-24 (a).)

Decided May 23, 1994.

Nall, Miller, Owens, Hocutt & Howard, Robert B. Hocutt, for appellant.

C. Alan Mullinax, Larry L. Duttweiler, for appellees.

Judgment reversed.

Pope, C. J., and Smith, J., concur.